So pretty much don't check, edit for grammar, italicize, etc

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
Stylistics
Posts: 53
Joined: Wed Oct 01, 2014 3:45 am

So pretty much don't check, edit for grammar, italicize, etc

Postby Stylistics » Wed Dec 10, 2014 5:26 pm

On a timed exam?

Just get everything on paper then sort it out later if there's time?

User avatar
Icculus
Posts: 1421
Joined: Tue Mar 02, 2010 12:02 am

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Icculus » Wed Dec 10, 2014 5:30 pm

Stylistics wrote:On a timed exam?

Just get everything on paper then sort it out later if there's time?


You are not going to be graded down for grammar or spelling so long as the exam is readable. That said, make sure it it well organized, the prof can follow what you are saying.

User avatar
Desert Fox
Progressively loosing literacy
Posts: 14423
Joined: Thu Sep 04, 2014 4:34 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Desert Fox » Wed Dec 10, 2014 5:54 pm

This got me an A

Code: Select all

Bonnie could be charged with murder; manslaughter; negligent homicide; or involuntary manslaughter.
   The first issues is of actus reus. Bonnie was at the party, organized it but never ordered Jackie to drink the water. It could be argued that her omission of stopping the ordeal is an voluntary act, and would be mens rea. In order for an omission to be an act, the defendant must have a legal duty to the victim. This would be hard to find before Jackie is falls ill from the water. There is a legal duty, when the statute imposes one, which it doesn’t in this case, or when one has s certain status relationship with the victim. There could be an argument that Bonnie acted as a parent in loco to Jackie because she was a soritity president, and should look out towards pledgeds, but that argument is a very big stretch. Jackie isn’t a child, though she is a minor. There could also be a statute giving a legal duty to soritity members, but that’s unknown. There could also be a contratical duty when joining the soritiy, but again it’s unknown. I think it’s unlikely that she had a legal duty but it is arguable.
   Next there is a causation  issues. Did Bonnies inaction directly cause the death. It was clearly a but for causation. Bonnie could have stopped the forcing of drinking. The next component is proximate cause. To be a proximate cause, the harm must be forseeable and sufficiently closely connected to the action. Here, not stopping a girl from being forced to chug a very large amount of water does cause her to die. It is a medically known fact, and it’s not highly extraordinary. In fact it is almost a certainty if you force someone to drink a lot of water they will have this condition. Under a standard like Acost, where an air collision was forseeable, the direct result of death from drink a lot of water would be foreseeable. There is however and issue of Jackie being an interceding or a superceeding cause to her own death. IT can be argued that she willing choose the keeping drinking, and thus breaks the causation. On one hand it can be argued that she violitionally choose to engage in the behavior like the drag racer in root. However, courts have also found that even if it was volitional, if the result was foreseeable, like in McFadden, that the def endant can still be found to be the cause. It was forseeable that having people engage in that game would lead to one of them  killing themselves. There is also a case where Atencio, where playing a dangerous game doesn’t cause a superceeding cause because they all created the situation together. In this case it’s not even clear Jackie created the situation. They used coercision to force her to play the game. It can  be argued that this is more like Stepheson, where the person commits suicide while being kidnapped. Bonnie had Jackie in a basement, with an implicit threat of explusion from the sority. They used fear, and  peer pressure to get her to play. It could be argued that Jackie was acting irrationally and that it wasn’t an intentional choice to play the game, making it not a superceeding issue. It could also be argued that Jackie, knowingly choose to drink the water, and that her choice was rationally made and she caused her own death. If the court found that, there would be no causation and Bonnie couldn’t be found guilty. However, I believe the former arguments would prevail and Bonnie would be found to have caused the death, and proximately caused the death.
The next issue is one of mens rea:
Muder: Under the MPC the mens rea for murder is purposely, knowingingly or recklessly with extreme indifference to human life. I think there isn’t much evidence that Bonnie had purpose to kill Jackie. Changing from liquor  to water is a sign that she had some care for the pledges safety.  There really seems to be no intent here to cause the death so I don’t see any way to claim she ment the knowing mens rea guidline.  She had to have conscious objective to cause the dealth. That would also defeat the common law claim of murder which requires intent. If the court or jury found she did have intent then  under common law they woud have to determine if there was premitation, or maliace aforethought. Bonnie planned to have the pledges chug the water, which would probably indicate that she weight the decision under the standard in Gutheie. Udner that standard they look to planning, evidence or the nature of the killing and other facts. There is a minority view in common law, from Carroll that any intent is premeditation.  If premeditation was found then it would be first dregree murder, and second if it was not. However, since I don’t believe there can be any intent, I don’t believe that Bonnie could be found guilty for either, first or second.
It also could be argued that she knew that drinking that Bonnie knew that drinking the water would cause the dealth. The standard for knowing is a aware that isi a practically a certaniity that conduct will cause a result. The first issue is whether drinking one gallon would create  practical certantity. Drinking water with no stop would practically certainly cause death but this was only 1 gallon. Even if it was enough to cause dealth in most,, there is also an argument that Bonnie assumed people would stop before they got to that limit. However, it could be argued that it was knowable that one gallon of water would cause the death.
However, Bonnie wasn’t actually aware of this. She was probably ignorant of the fact that water can cause death. This is a mistake of fact. Under MPC, even a reckless mistake would negate the knowledge mens rea. So I don’t see how Bonnie could be found to be knowing unless she wasn’t actually mistaken. Under common law only a reasonable mistake would exonerate, but common law doesn’t allow knowing mens rea for murder. If the court finds that she was reckless with draved indifference to human life  then under common law only a reasonable mistake would overturn. It could be argued that it isn’t general knowledge that dirnking water in large amounts kills and therefore it was a reasonable mistake, but it did should that she was at least negligent in that she didn’t follow the standard of care and  the mistake was unreasonable. If unreasonable she could be charged with murder.
Next we see if she could possibly be found to have been reckless. The Mens rea standard for recklessness is conscious disregaurd of substantial and unjustifiable risk. An that that there was  a gross deviation from the normal standard of conduct. I think the case here is strong. Bonnie disregarded any risk that drinking water could kill. The risk was substantial, it kills frequently, and the risk wasn’t very remote. And the was no justification for forcing a person to drink it. Again though mistake would negate the mens reason, but only f the mistake was negligent or reasonable. As argued earlier it could be reasonable, or negligent, but it could also be reckless mistake. She probably knew that drinking water had some risk, and still allowed that game to go on.
Finally did she have the mens rea for negligent homicide. Under common law it would be involuntary manslaughter. Which is either reckless, as discusses above, or negligent. Under both MPC and common law, there must be criminal negligence. That means she should have been aware of the substantial and unjustified risk would cause the result. I think the state has a good case. A normal person would be aware that drinking water could cause a large risk of death. And even if they didn’t know the risk, it is likely they know that some hard would occur. There is also an argument that this cause of death is fairly unknown and that a normal person wouldn’t know and therefore it’s not negligence. However, Bonnie was engaging in clearly dangerous behavior, and even if she didn’t know of the risks, she should have. There will probably be mens rea for neglence, allowing convinction for negligent homicide, or involuntary manslaughter under common law.
If the court didn’t find the actus reus for bonnie compelling, they can impute it with complicity to Betsey’s actions. Udner MPC the actus rues is aid or attempt to aid, and common law is only to aid. She aided by helping prepare the game, collecting the girls, and by encouraging by yelling and chanting. Though it could be argued that encourage won’t be enough, howver, the other actions would be enough on their own. For MPC she clearly attempted to aid, even if it wasn’t actual aid, though I believe she actually aided.
The mens rea for complicity is must intent to aid. She purposely aided Bestsey by creating the gathering, and by encouraging it verbally. However, it could be argued that if encourage wasn’t enough, that Bonnie only knowingly aided. However, she was purposeful in creation of the game, so she would have purposeful mens rea to aid.
The mens rea for result would be the same as the analysis I did earlier for MPC because the same mens rea is use for the actual crime. The common law uses two approaches, the same mens rea as the crime, like previously discusses, or the Luparellow, natural and probable consequences. Under this standard she would be liable for any natural, forseesable and probable consequence. Since the drowning was natural and forseeable this is basically using the same mens rea as the actual crime and the above analysis for homicide would still apply. It certainly wouldn’t bar a homicide or involuntary manslaughter.
Qiuestion 2
Since bonnie wasn’t the person who attemped rape we have to use complicity for attempted rape to charge Bonnie. To impute the actus reus for attempted rape bonnie needs to have done the actus reus for complicity.
Under MPC she needs to aid or attempt to aid the principle. Under common law she must actually aid.  Whether she actually aids is a up for debate. Howver a good case can be made that by letting Betsey know that there was interest in sex, that she aided in commiting the crime.  She also offered her room, as a place to commit the conduct. She creates the opportunity. It isn’t relevenant that the principle fails, she still aids. It could also be considered  aid by encouragement. Although that isn’t always enough. But even  if not, making the principle aware of the opprunity is clearly aidding. There could be argument that Betsey already knew Jill liked her, and that Bonnie’s intented aid wouldn’t have mattered, and that Betsey would have attempted anyway. But even that isn’t relevant because in Tally, an act only has to facilitate a result, and  it doesn’t matter if it would have happened already. The only way to not be aid is if Betsey somehow already knew exactly was Jill had said to Bonnie by some other method. But even that would only work under Common law, under MPC by conveying the message she still itends to help, even if it didn’t.
Next Bonnie needs the mens rea to aid, and this is under both MPC and common law. There is a a strong case that she purposely intended to aid. She voluntarily told Betsey that Jill liked her and would probably have sex with her. She also offered her room up, showing that he had intent to help Betsey, by securing her a place. It could be argued that she only did these things knowingly, or recklessless. But offering her room up, and conveying the knowledge really shows intend to aid Betsey. If she told the information only after being questioned by Betsey maybe it would fall to knowing. But that isn’t what happened.
The mens rea for circumstance is the major issue. Under MPC and most common law there is no mention of circumstance for policy reasons.There are two approaches you use the mens reas from the crime, or use knowingly. Under knowingly Bonnie doesn’t meet the standard. She didn’t know her age. If you use the mens rea from the crime there is another issue.  The statute doesn’t provide the mens rea for the circumstance, in this case the age of the girl. Under MPC, if any mens rea was mentioned youd apply to apply, but there isn’t any in this statute, and if there is none, you supply recklessness for all. However, under common law there are a wide variety of ways to deal with the mens rea for circumstance in rape. For statutory rape though, many if not most do apply a  strict liability mens rea standard. That means liability is imposed without any mens rea. Though usually talking about consent, another circumstance element, states use negligence like in Sherry, or recklessness.
The big issue is there is a mistake of fact. Bonnie is mistaken about her age, because she told Bonnie her age was 18. If the state uses strict liability this is irrevelant  because even a reasonable mistake doesn’t negate strict liability. Though 20 states do permit mistake defense if the age of the consent is over 14, and the difference in age is small. The question would be is the difference of Betsey and Jills ages – 7 years, small? Probably not. Judges imposes strict lialbilty in Olson, and Garnnett. If the applied mens rea requirement was negligence like some states do, then a reasonable mistake would negate the mens rea, under both common law and MPC. Was the mistake reasonable? Jill did say her age was 18, and there is nothing in the facts about her giving any reason to believe otherwise. It could be argued it is reasonable to take a person at their word. However, it could be argued that she failed to take any precaustions to find her true age. That would be a negligent mistake and thus would only negagate the mens rea if the state used a reckless mens rea standard. It could even be argued that lying to get onto college campuses is so prevalent and so widely known that not checking her age was a conscious disregaurd substantial risk that the circumstances where that way. Though it would hard to claim that a common law abiding citizen would check the age of a person, but it could be argued that they would while attempting to engage a very young women in sexual activity. It could also be argued that even if she wasn’t aware of that risk, she should have been would would have been a negligence mistake. That wouldn’t  be a defense in common law because it wasn’t reasonable, but it could negate reckless under MPC. Though reckless is a standard not usually used. IT could also be argued from a policy perspective that society should deter having sex with a minor by not allowing such a mistake, but that would be more applicable to applying a strict liability in the first place.
This crime doesn’t appear to have a results element so there isn’t any mens rea for result. IT cold be seen that the sexual activity is a result of the statue.  That would require under MPC and one standard of Common law that you  use the same standard as the crime. This would be recklessness if you used the MPC. The common law could use a number of standards. At the least Bonnie was reckless to the result. Her telling Betsey about Jill liking her, while also offering the room shows a conscious objective to cause the sexual activity. Even if you didn’t see intent in that aruge, you can find she recklessly disreguarded the substantial risk of it happening. But it appears she actually wished it to happen. The only other way would to argue that it was very unlikely to happen, but I don’t think that argument is persuasive. Some common law states use a test, like luparello, that she is liable for anything that is a natural/foseeable and probable consequence. In this case atleast, that appears to be reckless, or possibly even negligent. Like I analyzed before, there is most likely purpose, almost definitely knowledge, and almost definitely recklessness. It would be hard to argue that sex wasn’t a natural and probable consequence. The one argument is that it wasn’t probable. However that standard seems pretty wide when applying probability. I believe the state could easily argue it was probable.
Question 3
Doe could be liable for attemped homicide either by his own actions or by imputing the actions of Bestey by complicity.
Actus Rues for Doe’s act by omission. The first question is does Doe have a legal liablility to aid Jill. There could possibly be a law or common law that says in this state he has duty as a president of a university. Moral duty isn’t enough. He could have some kind of contractual duty, possibly from a contract the students sign to attend. There is an argument that he could be found to be in loco parent. Jill is young, a minor and without her parent. You can make a claim that this case is like Jones, where a child was left in someone elses care. The judge in  Jones however, only made the jury instructions say there had to be a legal duty. So it’s not entirely clear that would count. However, this is probably closes to Pope, where the person didn’t have legal duty because the mother was there. However, Pope says someone responsible for the supervision of a minor child has a legal duty, they just distinguished by sayin the mother was there. In this case there parents were not there. You could argue he was responsible for her while on campus. However, you can also argue that you aren’t responsible for every college attendee. That would be going to far. Also you can argue that Jill isn’t really a child anyway. She is 15, which is far different from an infant. Finally you can argue that her parents were still alive and hadn’t given up responscilibty. Finally you can have duty if you caused the circumstances. This is hard to argue unless you allow causing circumstances by omission, which would be beging the question, allowing omission to cause omission would charge the meaning of the rule. I think the most pressuave argument is that he had a duty, because he was respinsbile for children under his care as President.
The question becomes does this aid the conduct of the principles? I think it is clearly yes. He could have stopped the harassment and the intiations. The MPC explicitly allows aid thorugh omission. Common Law, at least from what we read, is silent, but it doesn’t explicitly diallow it either. Even if you claim that the initiation couldn’t have been stopped because the sority would find a way to hide it, under the Tally rule, where the act only has to facilitate the result, it doesn’t matter whether it would have happened anyway.
There is an issue about whether his omission is a proximate cause of the attempt. However, he would likely be the proximate cause because he knew that they were using water. That means the death is foreseeable under the same anaylsis I used for Bonnie in part 1. If he hadn’t known about the water, it might not be as foreseeable. However, some risk of death would still be forseeable under the standard in Acost, where he was liable for helicopters crashing, merely because some terrible result was foreseeable. In this same was Doe should have foreseen some ill results from allowing the initiations to go on.
There is an issue of intervening/superceding cause. I analyzed this under Bonnie in question 1 and I think it holds for Doe because he would be charged for complicity under the same actus reus bonnie was.
Mens Rea: Under the MPC and Common law the defendant must intend to aid the principle. This will likely be the biggest bar to the state’s claim. The standard is conscious objective to aid the conduct that will be impuned.  The fact pattern says he dislikes the initiations but tolerates them for other reasons. It could be argued that he consciously aided them by omission because he thought they were popular and profitable lacrosse players. His intent was to help them because of his feelings towards them. He also had a don’t ask don’t tell policy which might be shown to purposely aid them by not asking questions. Questions he might have a duty to ask as an administrator.  However it could also be argued he didn’t any any intent to help them have initiations. He obviously didn’t like the initiations. He knew they were happening, so that would meet the knowing standard, but for complicity he must have purpose/intent.
If they find purposeful mens rea, they can impute the actus reus for attempted homicide. This brings up an issue of whether there was even enough to get attempt. We have to analyze the behavior of Bestsy. Under MPC there must be a substamital step that corroborates the actors criminal purpose. In this case, Betsey had forced them to drink the water for a while, and it was only luck, that Jackie died, that Jill escaped. This goes so far as to meet the common law standard of last proximate step from Rizzo. Where the commission must be reasonable likely without interference. It was likely until the death. IT would also meet the equivocality test by looking at how preparation corrobates intent. It’s clear that again the standard would be met because she is just about to commit the crime. It was a luckly break that ended it.
There is also a possibility that the actions themselves were attempted murder without imputing Bestey’s actions. There the actus rues would be was his actions enough under MPC And common law. Because like the pervious paragraph, his actions were only not successful because of a lucky intervention.
We would have to analyze his mens rea for conduct/result. For attempt he needs purposely engage in the conduct or knowingly. Since his conduct is the same I used to claim complicity, the analysis is the same. However, if you found  knowledge in that section, it would be enough to meet  the MPC for  conduct, because knowledge is enough. For common law, only purpose is enough, and if you didn’t find intent it can’t be met.
For charges for attempting homicide, the mens rea requirement is the same for complicity and the actually attempt himself so the analsis only requires one pass. For Attempt you need  purpose or knowledge for MPC and purpose for Common law. It is hard to argue he wanted Jill to die. There is no evidence of it. It is slightly easier to argue that he knowingly was awarea of the practical certainty. But that hinges on showing that he knew it was certain, instead of just likely. Under common law even that wouldn’t work. I don’t think that argument is a good one. Under attempt there is no liability of recklessness, or negligence because of this men rea rule.
There is a chance the court uses common law, “natural probable conquences” test for the complicity theory of attempt. It could be argued by allowing initiations with drinking water, led to the natural probable consequence of death. He knew that drowning was a possibility. It was forseeable. In Luparello, it  basically makes the accomplice liable for the mens rea of the accomplice. However, I think it can be distinguished based on this being attempt. Liparello used it for actual homicide.
Question 4)
Jills liability for Besty.
The actus reus is clear, she struck Besty. The causation is clear, it was direct, and proximate. This is a question of provaction, EED and self defense.
The mens rea for homicide under MPC is purposeful, or knowingly. I think it is clear that Jill purposely swung at Bestey. This would meet the standard of mens rea for conduct for all the homicide crimes under MPC. There is a question of whether she was purposeful, or intent on causing the harm. But again, she smashed a hard object on someone’s head. That goes beyond reckless, for both MPC and common law. For common law you just need intent, and  there might be an issue for whether her actions intended to kill, or were just done knowing it would kill. I believe there is a strong case that she fully intended the harm. She purposely swing, hitting her on the head. If that isn’t intent, nothing is.
In common law muder is separated by first degree and second. First degree requires malice aforegthough. Under the standard of Carrol, any intent is premeditation, no time too short. Though I lieve the court would the regular standard, outlined in Guthrie, which requires evidence to support premeditation. That standard requires evidence suffience to support premeiditation like planning, facts about prior relationship, and the nature/manner of the killing. While it is possible jill sat and plotted about murdering Betsey, there is no real evidence to show it. The state could claim she had the time to while being forced to drink the water, but the real provocation started when the other girl died. I doub thtey could prove it to beyond a reasonable doubt. The factors against premed  is there is no evidence of planning, the prior relationship was friendly, though soured during the iniation, an the manner of murder is indicative of no planning, and  a rash judgment.
The next issue was does the murder get mitigated because of the other factors. Under common law the crime can be mitigated to voluntary manslaughter with provocation. The things that can provoke are seriously physical injury, mutla combat, and illegal arrest. A case could be made for those three. Keeping the girls in a basement and yelling could be described as a form of illegal arrest. Especially if they used fear and coerscion to keep them there. One huge factor in that arugments favor is that this probably the envire motive for the crime. She struck Bestey to escape. Forcing her to drink the water shows physical injury, though ticoud be argued that it was voluntary, and actions to yourself don’t count. The weak argument is for mutal combat, because there was no prior violence, though you might construct an argument based on detention. The other requirements are 1) the defendant acted in heat of passion. This is clear, she was young, afraid, and angry at Betsey for detaining her, and for killing the other girl. Though fear alon eisn’t enough for Common law.  2) adequate provocation. Words aren’t enough. There could be a case that since all that Betsey did was yell, and tell them to stay, that this factor might fail. Though, the use of ceoriscion isn’t merely words, and goes beyond being strictly verbal. This uses a reasonable person standard. A case could be made that a reasonable person might not be angry beucase of their choice to stay, but I think that doesn’t hold well. 3) Caual link, can’t kill a third person, this is clear Betsey was the tormentor. 4) No cooling period, again clear, this was in the middle of the initation, immediately after the girl fell ill.
Under MPC to mitigate to manslaughter you have to show extreme emotional distress, and that there must be a reasonable explanation, from the view of the defendant. A strong case could be made that she was extremelty emotionally distressed. She was someone dies, was force to drink extreme amounts of water, and was afraid for her life. Under this fear counts unlike common law. The reasonableness is another issue, but who in that position wouldn’t be afraid.
There is alos a self defense issue. Under MPC it is allowed when the actor believes force is immediately necessary to protect aginst unlawful force. Here Jill did believe that force was necessary to protect against unlaw force. The force could have been more dirnking water, or the threat of continued detention. There could be a mistake of fact, but it was fairly clear the older girls were holding them there. Though and arugment could be made that the girls could in fact leave at anytime. Though it’s not clear that was true. If it was that would also open up an arugmetn that she could have retreated, but she couldn’t if she was being detained illegally by force.
Under common law, there must be an actual or apparent threat of the use of deadly force. There threat must be unlawful and immediate, and the defender must believe he is in imminent peril. Her belief must be reasonabl, and I think it was. She was somelese else die at their hands, what could be more reasonable. The force used by the older girls was already deadily to the other girls, which causes an apparenent threat to her.
The force is actual and apparent. The girls yell and told them they can’t leave, and she just saw them involved with another girl dying. The threat is immediate, and is in fact unging, and Jill thought she was in imminent peril.

User avatar
fats provolone
Posts: 7125
Joined: Thu Oct 30, 2014 4:44 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby fats provolone » Wed Dec 10, 2014 5:55 pm

"The threat is immediate, and is in fact unging, and Jill thought she was in imminent peril."

User avatar
Desert Fox
Progressively loosing literacy
Posts: 14423
Joined: Thu Sep 04, 2014 4:34 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Desert Fox » Wed Dec 10, 2014 5:57 pm

"IT cold be seen that the sexual activity is a result of the statue." - Desert Fox

User avatar
fats provolone
Posts: 7125
Joined: Thu Oct 30, 2014 4:44 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby fats provolone » Wed Dec 10, 2014 5:57 pm

lol you have:

-Betsey
-Bestsey
-Besty
-Bestsy

none of which were the correct spelling, i assume

User avatar
MarkinKansasCity
Posts: 11019
Joined: Thu Jun 14, 2012 10:18 am

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby MarkinKansasCity » Wed Dec 10, 2014 5:58 pm

Desert Fox wrote:"IT cold be seen that the sexual activity is a result of the statue." - Desert Fox


Busted up laughing IRL at this.
Last edited by MarkinKansasCity on Wed Dec 10, 2014 6:00 pm, edited 1 time in total.

User avatar
fats provolone
Posts: 7125
Joined: Thu Oct 30, 2014 4:44 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby fats provolone » Wed Dec 10, 2014 5:59 pm

how do you have that? please don't tell me it was the model answer

User avatar
Desert Fox
Progressively loosing literacy
Posts: 14423
Joined: Thu Sep 04, 2014 4:34 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Desert Fox » Wed Dec 10, 2014 6:01 pm

fats provolone wrote:how do you have that? please don't tell me it was the model answer

I have all my exams. NW just has you upload a .doc file.

User avatar
Dany
Posts: 11580
Joined: Mon Sep 28, 2009 3:00 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Dany » Wed Dec 10, 2014 6:02 pm

:lol: :lol: :lol:

"She was somelese else die at their hands, what could be more reasonable."

User avatar
fats provolone
Posts: 7125
Joined: Thu Oct 30, 2014 4:44 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby fats provolone » Wed Dec 10, 2014 6:03 pm

maybe she gave you an A fearing an ADA lawsuit

User avatar
Desert Fox
Progressively loosing literacy
Posts: 14423
Joined: Thu Sep 04, 2014 4:34 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Desert Fox » Wed Dec 10, 2014 6:03 pm

fats provolone wrote:maybe she gave you an A fearing an ADA lawsuit


I think I get the LLM benefit of the doubt.

User avatar
Desert Fox
Progressively loosing literacy
Posts: 14423
Joined: Thu Sep 04, 2014 4:34 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Desert Fox » Wed Dec 10, 2014 6:04 pm

Dredging –
Section 404 requires all dischargers of dredge and fill to obtain a permit form the US Army Crop of engineerings, which Big Oil did. And the US army of Corps of engineering did grant a permit. Section 402 forbids the EPA from exercising permitting authority over what is provided to the USACE (Couer). Therefore, if the dredging operation was rightful permitted under 404, CA cannot sue because of a lack on an EPA CWA permit. Jurisdiction turns on how you define fill, I will discuss this under CWA permitting section.. But this is a fairly standard dredging/fill operation. They could also claim the 404 was improper. A 404 permit is decided by if the planned operation 1) has no practicable alternatives to the proposed discharge. Here, this is the only big port in the state because of costal conditions, and practicable analysis usually rets on if there are any feasible alternatives. Here there are not. CA may argue there are, but no evidence has been shown. 2) No significant degradation of navagble waters. Here, CA will claim that it will continue killing fish, hurting fishing, both commercial and recreation, and make that significantly degrades the navigable waters, which the coastal waters are definitely a part of. 3) it must minimize potential adverse impacts. Nothing here discusses it so, CA will argue it doesn’t, BO will argue it does. But in practice there as almost always give by the Army Corps.
CA will most likely have standing to sue under Mass v. EPA because they have quasi sovereign power, and therefore have interests over all the land and waters in it’s state. They may have an issue with redressability if the fish are already dead, though they could claim that reducing pollution will take steps to allow fish to repopulate. I believe they would have standing.
CWA permitting.
The EPA is also claiming that Big Oi failed to get a CWA permitting. As mentioned, if the US Army Corps has jurisdiction, then the CWA does not. But here CWA is claiming jurisdiction because the dredging will disperse contaminants. This is a good argument because it expands past the original goal of a 404 permit.
CWA regulates pollutatnts under 502.6, and 401 says any activitity that MAY cause an addition of pollutants to navigable waters from any point source. Clearly the Ocean is a navigable water (continuous standing body of water), and a harbor is part of the Ocean because it is adjacent and has continuous surface connection under Rapanos – scalia opinion, and a significant nexus to qualify under Kenny’s.
The pollutant of benzene and DDT definitely qualify as a pollutant.
The first major issue is if a this qualifies as a point souce. A point source is s a discernible, confined, and discrete conveyance. It could include things like a ditch, channel or tunnel. The pipping leakage of oil definitely counts as a point source if it’s leaking into the harbor. It may not if it just leaks onto the ground, and contaminates via ground water. The vents where the dry ice falls out are also a point source under the definition, they can be controlled a single source However, just passing through a point source can be enough, and since the issue oil is coming through the pipping, EPA will convincingly argue it is coming through a point source. However, CO2 maybe not be a pollutant under 502.6, but it could probably considered one.
The oil leaking from the leaking Tankers is also a point soure since a vessel is named in the statue. Since Big Oil owns the oil in the tankers the EPA might successfully argue they also need a permit for that.
The weaker case is that the dredding, kicking up DDT. The DDT is a pollutant, but the dredding is hard to classify as a point source. The harbor may be the point source. IT is discernible, confined and is somewhat discrete. It is not a typicaly point source, but it is definitely broadly. The other issue is that Big Oil can claim that they are not really adding any pollutants by dreddging. First, they will claim it’s not an addition because it all comes from the bottom of the harbor, which is already part of the navable water. They would argue it’s just a fallback from an excavation like National Mining. And South Florida Water said if it’s just water from the same body of water without intervening use or addition, it’s not an addition under CWA. However, EPA would argue that if the pollutants are just on the bottom of the Harbor and they churn it up, it is an addition and there is a case, Borden Ranch that supports that view.
Also there is the matter of burying the fish by Big Oil employees Big Contractor. Since a ditch counts, maybe a buried pit would count. However, groundwater releases do not count under CWA. But this pit was half under tide half over tide. It could be argued it was dumped directly into the Ocean. However, Plaza Health ruled that individuals are not point sources. Maybe the act of containing in a pit would change that ruling because the pit become the point source.
There might be some regulation available based on total daily max loads because it is a NA area. Big Oil is at risk because it did not get a permit for the c02 emissions and the oil leaking from their pipes and potentially the oil from tankers, but has a better case for not needing a permit of for the dredging because they got one form the US army corp, and because they arguably aren’t adding, though caselaw may show they did add under the statute. Big Tankers need a permit for their oil leaks and they did not get one, they are at risk.
CERCLA-
Big oil is also being sued under CERLA. There was a release, and an ongoing threat of release of several hazardous substance, which are defined very broadly. The DDT may count, the dry ice and c02 may or may not. But in Mass v. EPA the SCOTUS allowed EPA to regulate CO2, so it may now be considered hazardous waste under Cercla. Hazardous is anything dangerous to humans and the environment, which Co2 certainly is. Benzne is a hazardous substance and several cases have dealt with it, it causes cancer. However, Oil is not considered hazardous under the statute, because of oil lobbying and other oil regulations. The issue is will Benzene be consideded hazardous because it seems to just be part of the petroleum discharge. EPA will argue it is separate, but Big Oil will argue the hazard is just all oil. DDT is a pesticide, and pesticides are not hazardous if the usage was application of them. Manufacture and storage, disposal is still considered hazardous. Here, it looks like the DDT source was originally Big Ag’s farm. Some investigation should be done to see if maybe there was storage or disposal of left over DDT, maybe after it was banned and no longer useful. But if the source was just apply ing to big Ag’s farm, then it won’t count under Cercla. Though, the source for the Big Oil property is fish contaminated with it. EPA will argue that is not an application of DDT but a new release caused by dumping the fish into the ground . Big Oil will argue that it’s still the application, but CERLCA casts a wide net, I think Big Oil will still be responsible if it’s a PRP.
CERCLA regulates from a facility or vessel. The definition is anywhere a hazardos substance has come to be located, which is very expansive. The only real exception is consumer products, which isn’t at play here. This requirement is met.
Big Oil:
Big oil doesn’t actually own the land so it is not a owner for CERCLA PRP. EPA may argue that a 99 year lease is in fact a defacto owner of the property. However this isn’t important because Big Oil will most likely be a PRP for being an operator at time of release. It has substantial and active control of the facility when the Co2, DDT, Benzene and Oil was released. It’s potentially an owner for the tanker oil leaks as well because it’s contract says it still owns the oil while on the tanks. It is also possibly an arranger for the Tanker oil leaks because it arranged for them to carry the oil. However, this case is fairly close to Burlington, which held that a company was not liable just for senting a hazard just because it sold them as products. Though EPA will try to distinguish by saying that it hasn’t sold the oil yet and they are very intentionally sending the oil to these ships. This isn’t just where they end it, it is part of the distribution plan. Again, oil is not a CERCLA hazard, so this depends on whether the court will separate the Benzene from the Oil.
Big oil will claim the fish burying which cause the DDT was not part of their operation and facility. They will argue it was not their employees, but a contractors. Howver, Big Contractor is their contractor and employee. Typically Bestfoods, prevents a corp parent from being responsible for a sub’s actions. However EPA will claim that they they were an operator of the fish burial release. To show that they need substantial control and actual control. Substantial control asks how much control they had over dumping or release, FMC. Here, the dumping was done by their employees who they arguably substantially controlled. Control over employees almost definitely would count. The question is actual control. Gurley says actual control requires they had the authority to dispose Haz waste, or authority to choose method, and they acutally exercised it. It’s clear they had the authority, their contractors did it. But did Big Oil actually exercise that authority. It’s not clear who gave the order to do the cleaning. EPA will argue the contractor is an agent of the company no matter what, and Big Oil will argue the contractor did the dumping on it’s own.
Big oil will try to find as many other PRPs to try to split the cost of clean up under 113. They should try to get Big Ag because they originally applied the DDT and it’s leaking from their property, so they would be an owner/operator. But application of pesticides is protected, so this is unlikely unless more evidence shows the DDT is not from application. They could go after Big Chem for making the product as a generator/arranger, but Burrlington is almost directly on point here. Burrlington said a pesticide maker is not liable for the products it sold. They would have to show intent to dispose on Big Ag’s property.
They should go after Big Tanker, as the owner of the vessel disposing of oil/benzene and as a transporter. Transporter PRR usually requires having some control over the site for disposal. They choose the route for their leaky ship which is a large degree of control, but that is more owner/operator liability. The indemnification could be used to go after Big Tank for money for the spills if Big Oil is liable, but that does not contract around being a PRP. Big oil could only go after contractual damages later on.
They could go after big contractor for being a operator for the DDT and the leaky pipes. BigC would argue that they had no substantial control as there were a mere instrument of Big Oil. But they could have cease the work and refused. They choose to follow orders (if orders were even given, they may have done the DDT burial on their own. Maybe also as a transporter form the facility to the tankers, however big contractor probably had no control over selecting the site. They merely moved it from one the other. However, maybe the choice to use leaky pipes is controlling where to dispose.
Big Real Estate is an owner, and is a PRP even if he’s not responsible for the release (Shore Realty). The applicable defense here is a 3rd party defense. But Big Oil is far from unaffiliated, nrelated and unknown. They are a legal tenants, and they should have known what big oil, big contractor is doing. And should have known creates constructive knowledge. They could probably claim 3rd part for any oil leaked off the tankers that washes on their land.
Also California is an owner of the land itself. They may claim involuntary transfer if that is how they got the land. They would be able to claim the 3rd party affirmative defense because they didn’t know, big oil was unaffiliated. However, Big Oil could claim they should have know, especially if the plant was registered properly. The fish burial would be easier to claim defense for because it was unreasonable to expect that.
Big oil could attempt to escape joint and several liability by trying to apportion harm, either by distinctive harms, or by reasonable basis for determining contributions of each. Distinctive harms could work because there are several different hazards here. The court might be able to separate them based on that. The reasonable basis for determining harm is much harder. There are several RRPs with varying levels of cooperation and actions. The Burlington Norther factors don’t really help to split this case up, so I do not believe a court would use them. Nor would Big Oil even want to, they are the big polluter here. Separating the harms might just increase their liability exposure. Though they also have deep pockets so EPA will go after them.
Big oil will argue the Gore factors when allocating liability assuming 113 actions work for them. The court will have broad discretion. Cooperating reduces lialbity under Gore, so that might be advisable.
RCRA –
They are also being sued under RCRA for the Co2 release in the air. RCRA regulates solid waste that is discarded. Schedule C regulates hazardous waste.
First question is, is it solid waste. The definition is much larger than a dictionary definition of solid waste and includes solids, liquids, and contained gaseous materials, including sludge. Here the dry ice is a solid and almost definitely counts under the statute. Co2 gas into the air is a different story. While contained gaseous material is a solid waste, a lot of the C02 released is was not contained. EPA may argue that the CO2 was somehow contained. It’s also not clear why the oil/benzne and DDT aren’t also included in the suit. There is a risk that will be added later. The oil and DDT are both classic solid wastes under RCRA.
The solid waste was disposed of and abandoned. No recycling claims are possible here. Big Oil would be a generator of waste for all the wastes mentioned. It would be a TSD for the DDT because it disposed the fish with DDT by burying it. Again the agency problem with Big Contractor is still there. Big Contractor is a TSD as well. Big oil could be consided a TSD for the dumping of oil and benze into the harbor and Ocean.
Is waste hazardous? The DDT and Benze is clearly toxic from the effect of killing the fish, so it’s most likely a characteristic waste. C02 maybe be considered toxic because it killed the fish, but Big Oil may say it wasn’t toxic properties, it just choked the fish. But I doubt that is persuasive. DDT and Benzne may be listed waste under EPA regs. And anything derived from or mixed with it would be hazardous. Which means oil that contains Benzne would be considered hazardous under RCRA.
CAA-
Under CAA a modification counts a new source only if it’s a major modicaiton. Meaning there is a physical change, which is clearly true by replacing a large pipe, AND the emissions increase. Here, there a net increase because of the piping leaks. Duke energy says that the EPA can use a net increase in emissions as their standard. So under Duke Energy the net increase means there was a modification that needs a permit. Under a rate increase standard there would not be a need for a permit, but Duke Energy allows the net standard. Big Oil could instead claim the excepton for routine maintaince, repair and replacement. Here, they are only replacing a pipe. However, it is in an attempt to change the emissions of the plant, which is arguably more than routine replacement. The other question is whether the court will take intent itno account. The plant thought they were reducing, which is why they did not get a permit. It’s not clear if the EPA has to show negligence or is strict lialblity governs CAA permitting. They were acting in good faith.
However, under the EPA regulation, they are still under the 1000 tons limit. This is how Big Oil will argue they followed the law. Big Green will argue that the regulation goes against the CAA statute. This will trigger chevron review of the agencies regulation. Step 1 asks if the statute is clear, but the statue does no clearly define modification. The courts have given the EPA discretion in deciding that in the past under Duke Energy. It’s unlikely the court will find the statute clearly and unambiguously spoke to the question. Under Chevron step 2. The court will give a lot of deference to the EPA. The test will be if the interpretation is reasonably based on permissible construction. EPA will argue it is setting a reasonable increase limit. BG will argue that 1000 tons is a lot of pollution, and it’s based on nothing. This might test the limits of Chevron deference. EPA will also argue that this isn’t a regulation, but’s just an enforcement decision. It’s only saying it will not enforce infractions under 1000 tons. EPA has wide discretion on NAAQS (EDF).
BG must also have standing for this (they will probably have standing for their NEPA beucase fo a statutuartorily created interest in that statute). The organization must find a member with individual standing an dthe organization must have germane interest based on orgos purpose. Being dedicated to Californias enviro, is probably enough to justify that last requirement .They have two fisherman who fished in that extact area and cannot find fish, and cannot use the area because of Co2 fumes. That qualifies as imminent and concrete under Lujan, assuming they can prove they had concrete plans to use the are in the future. General plans aren’t enough. But under Laid law, injury based on recreation, aest. And economic interests are enough to find standing.
NEPA requires an EIS for proposals for major action. Permitting for a large dredding may qualify under 102c. The question here if the EA and the FONI were valid. The standard for review is arbitrary and capricious. So under the Peterson test, the agency must take a hard look, here they just said the fish are already dead, it doesn’t matter. That seems very shallow review. They must ID revelent areas of environmental concern, here they only discuss the fish, and not other lifes or eco concerns. They must make a convincing case for insignificance, here they make a somewhat convincing case. Hanley allowed an FONSI to consider how the current situation already is, for example a road near other roads is not significant, while a road in the pristine is. Here, the coast is no longer prestine and devoid of life. Howver, the EPA could argue that without any action the life will return. The CEQ factors requires big and small picture context. Here they only look at the small picture of of the very local context. They don’t say what happens durther away, also it might harm whales, which judges really don’t like.
CA may be able to sue under public nuisance.

Question 2
The first question is does the EPA have the authority to make the rule. Mead says congress must delegate authority, and here Congress clearly gives EPA to make that list under EPA, and the EPA used that authority to make that decision. I also assume they followed rulemaking rules properly and is allowing for note and comments. Since this is merely proposed, the client should absolutely be involved in the note and comment process and challenge all the EPA’s claims. The EPA will be required to consider their comments.
If the rule is adopted. Then the client should sue to have judicial review of the EPA’s decision here. The client won’t want to challenge the EPA’s ability to make changes because they clearly have that authority. The client wants to challenge their actions and reasoning.
CWA is designed to create water quality standards based on ambient concentrations of pollutants and waterways. There are two ways to limit, ID designated uses for body of water. And then select water quality criteria designed to protect designated use. The second part is at issue here, the EPA must create quantifiable concentrations.
The problem with the suit is that EPA can only be sued to perform it’s non-discretionary duties. The court can only compel action, but no specify what. But challenging an agency ruling is different than forcing them to do an action.
The first argument will be that the EPA is not regulating the risk correctly. Under Benzne the EPA must make a threshold finding. Here they are simply removing the chemical without calculating a threshold, EPA will argue that they finding a threshold of zero, but I do not believe that will convince the court. The Threshold must be when the amount lacks safety, or causes significant risk of material health impairment. The EPA sort of find argues that whatever the threshold is, the current amount is well below it. That is sort of arugint the reverse of Reserve Minnning or Ethyl. That there is not significant harm at this level, so don’t regulate. However, your group should argue that it must find a threshold. You should argue that they should use a quantitative risk assessment, which is the norm.
The EPA is basising their assessment on studies of rats, which by itself is probably allowable, but they don’t make a very good use of the study. The study itself finds large exposure does increase rate of cancer by 5 times, even if individual cancers are below significance. This shows that Styrene is a signgicant risk to human health.
Saying it’s not clear if stryrene can penetrate the skin is not evidence, it’s the lack of evidence. It also ignores the certainty that the water will be ingested in other ways.
Arguing that Sytrene exposure is low now, 1ppb, is not a good reason to stop regulating the material. That could just show that the regulations are working to have the human health environment. Arguing that the effects are of acute Styrene exposure as only eye and throat irritation is also a bad argument for the EPA. That would definitely affect ability to drink the water, use the water for fishing and swimming, which the CWA is in part designed to do. Signifcant harm is not just defined by mortality, harm can be irritation.
Just stating that fish are harmed that nobody eats is not enough to avoid regulation. Harming the environment should also be considered. Fishing should be considered and the value of the ecosystem. And impacts to the ecosystem that would happen secondarily when the fish are harmed, ie. Food chain considerations.
The court will allow the use of cost benefit analysis (Reserve), unlike the CAA. But the EPA’s cost benefit is poorly constructed. They compared the entire worth on the industry to the cost of the fish it will kill. First, the entire industry isn’t destroyed by being regulated. At best the cost to comply with regulations should be considered. Second, it doesn’t take into account any other human harms.
The EPA may argue Corrosive Proof Fittings requires the least amount of regulation. But they haven’t show that none is the least that will successfully protect the environment.
Considering litters while making the regulation is baffling. Throwing garbage off a boat shouldn’t be protected. But, it’s not even clear if CWA would regulate an individual throwing a cup in the garbage. A person cannot be a point source, but a vessel can, so that is arguable. Maybe a better regulation, tighter regulation would say that littering isn’t a point source.
Overall the EPA failed to show it had a reasonable basis for it’s regulation. A court may strike it down as arbitrary and capricious. It seems like the only reason here is because of industry lobbying, which is not a good reason. Maybe lowering the threshold amount would be allowable, but the EPA made almost no attempt to find a safe level of Styrene. Showing that current levels are safe is a bad argument that no levels should be allowable.
However, courts have been very deferential to the EPA in the past. It’s still possible the court will deffer to the EPA even after they made a very poor case. The example of Justice Stevens saying if he is confused he will differ to the agency, may be a good example of what could happen in this situation. Especially since Congress did intend to give the EPA difference, as required by Mead. I think the arguments against the regulation are strong, but deference can also be strong.

User avatar
georgej
Posts: 2370
Joined: Sun Nov 10, 2013 12:55 am

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby georgej » Wed Dec 10, 2014 6:05 pm

That is one great essay

User avatar
Desert Fox
Progressively loosing literacy
Posts: 14423
Joined: Thu Sep 04, 2014 4:34 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Desert Fox » Wed Dec 10, 2014 6:06 pm

this is what a B in an uncruved class looks like -- AKA pure shit

The first issue is whether Speedy is a carrier under COGSA. A carrier is a COGSA carrier when a bill of lading is signed, and the carrier is shipping either to or from an American port and a foreign port. Cogsa coverage only lasts when the package is picked up to be loaded to the vessel and ends when it is unloaded. Speedy will be a Cogsa carrier from loading until it unloaded in the port in the united states. Traditionally that is when Cogsa ended. However, the Harter act extends this carrier duty a little further to actually delivery by the carrier. This might seem to indicate that inlane transport was covered by the harter act. But the court in
Concert Express rejected that theory.
It could also be argued that Speedy isn’t the carrier, but that London moves is the carrier, and Speedy is just a third party. London movers take control of the shipment and seemly contracts with Speedy, and whoever is operating the railroad delivery. Under this argument Speedy is merely a subcontractor, and would only be covered if London and John’s BOL (which the facts don’t mention, and probably doesn’t exist) had a Himalaya Clause. However, the fact that Speedy issues a BOL directly to John shows that Speedy was infact a carrier under COGSA, and would get direct coverage from COGSA.
The applicability of COGSA over the rail part will depend on whether there is a Himalaya Clause in the BOL, which is extremely common to the point of ubiquity in current shipping practice. If the Himilaya clause was in the BOL, it will allow COGSA terms to govern the entire multimodal trip, like the court fodn in Kawasaki. If there is no Himalaya clause then the terms of Cogsa will only apply while the ship was at sea between ports, and the harter act would apply for the brief time after unloading and before delivery, by Speed, to the the rail road car.
John must build a prima facie case like, the court in Lekas & Drivas, explained. First John must establish the two elements of a prima facie case against a COGSA carrier. The first is proving delivery of the good to the carrier in question. The second is outturn by the carrier in damaged condition. On the first condition John has a strong case because the BOL includes a list of the 50 items of personal property. However, the Bill of Lading (“BOL”) only stated that, it did not list what each were, not each delineated. London movers however, provided Speedy with a packing list describing each thing individually. Lekas found that the BOL description was prima facie evidence of the first prong. It could be argued that since the packing list wasn’t agreed to by Speedy it cannot be held to be prima facie evidence of the condition of the goods before shipping. If they weren’t then John would have to show other evidence to show the condition. The packing list migh be evidence, just no prima facie evidence, of the condition. Further evidence by the truck drivers, or the stevedores, asserting that nothing happened to the goods on route to the port might help establish. But the loss of the prima facie recognition in Lekas & Drivas case is a hard blow. However, John could argue that the packing list was added implicitly to the BOL, giving John the first prong of the frima facie burden.
The second element is outturn by carrier in damaged condition. If Speedy is the carrier from port to delivery to John’s residence, via a himilaya clause, this is easy to show. The items were damaged by sea water and by crushing and rattling, and it wold be easy to show. If Speedy is only the carrier from port to port, and the rail is not part of the COGSA coverage the case becomes more difficult. The damage by sea water would be easy to show, because that sort of damage very likely happened on sea. Testimony by rail company men, and London Movers, could easily preclude the damage from happening during those legs. The damage from rattling and crushing is hard to pinpoint. The damage was caused any time the items were able to shift every time there was movement. A court could find there is no evidence there was any crushing or rattling damage was done before the outturn by Speedy. It could also be argued that the ship was moving due to the nature of the trip, and some damage must have happened during the trip, even if other damage occurred later. Calculatiing how much damage occurred would be asignificant problem.
Then Speedy would have to show defenses under COGSA. Q clause that might work, that requires the carrier to prove that neither it’s negligence nor the negligence of it’s agents caused the loss. The standard from Quaker Oats, is that the defendant must show what cause the damage, not merely that there is no evidence that the carrier’s negligence did it. Speedy has a good case to show that the damage due to crushing and rattling was due to the negligence of the movesr, London Movers in packing the container. The one argument against that Speedy may be negligent themselves for not checking the container for proper packing, but this argument isn’t supported by case or statute, there isn’t a duty to inspect inside the containers to make sure they are packed correctly to prevent internal injury to the containers. It would be much harder to show that the seawater damage was covered under the Q clause in COGAS. There is no clear cause of the seawater damage. And even though there is no evidence that Speedy’s actions clauses the damage, that isn’t enough under Quaker Oats v Torvanger. They have to show how it was caused by something else..
Because negligence of management of the vessel would also preclude COGSA liaibilty for Speedy, they might argue that the management’s’ negligence caused the injury, possibly by not checking the loading, as discussed before. But since there is a fine line between negligence in care and custody and management, that wouldn’t be a good argument. They’d likely prove that they were negligent in care, making them liable. The duty a cogsa carrier must give is to make is seaworth and properly man, and maintain the holds, under §3 of Cogsa. Improper storage would go to Unseaworthiness and make them liable.
The clear one would be Cogsa §4(2)(i). Act or omission of the shipper or his agent. Since Labor was clearly the agent of John, it seems that it would beat the crushed and rattled claim under COGSA. The same prior arguments about proving who caused the damage would apply. The seawater damage wouldn’t be covered, but it is very likely the crushed and rattling would.
The other clear one is §4(2)(n). The insufficiency of packaging is clearly applicable for the crushed and rattling damage. Speedy wouldn’t be liable for damage covered by it.
To defeat these defenses clause John would have to show that the carriers negligence contributed to them. John could try to say that Speedy’s negligence caused the packaging issue by not discovering it, but as discussed before this a weak issue. However, since the Q clause defense probably won’t work on the seawater damage, that claim will still survive.

It is also the carriers duty to bear the burdern of segregating the portion of the damage to the excepted cause form the portion resulting from it’s own negligence. So the burden is on Speedy to separate the seawater from the crushing and rattling. If the court doesn’t find the Q or I Clause applicable, speedy will be liabile for all.
Speedy will also argue that COGSA package limit will be $500 dollars for the whole cargo container. John will argue that each item is a package. There is some case law to support both. The case Fishman & Tobin described it as result of some preparation for the cargo for transport which facilitiates handling. Both a contain and a box could qualify as that definition. A box is clearly preparation for transport, and courts have found boxes as packages before. The shrink wrapped furnature seem to apply as well because the shrink wrap is allied for transport, but it doesn’t facilitate handling ease, only protecting it. A court might distinguish protecting the item and facilitating handling. John would argue that protecting does facilitate handling, especially under cogsa liability for damage, protecting cargo is important. Speedy would argue that containers are the packaging, and the furtnature and boxes are what is inside.
Question 2.
Yes the Pennsylvania rule does apply to COLREGS 6, and Otal Investments v. M/V Cary explicitly found so because that rule is a procedural rule, and the US court can apply the law of the foreign nations with the US procedural law. This only applies with Collisions in Int’l waters, between foreign flagged ships. In this scenario the collision happened in high seas and the two vessels were flagged in other nations. The US court will allow COLREG violations to trigger the Pennsylvania rule, and creates a strong presumption that it was the cause of the accident.
Dove has several defenses it could argue. The first is that of §4(2)(a) that it was an error of navigation and management by the ships master and crew. The Pennslyvania Rule would actually support that since it creates an negligence per se presumption was the cause of the accident. It would be argued that Speeding is an error of management of the ship. It clearly was. It could also be classified as navigation, but I am not clear on the exact definition of navigation and whether speed is part of it, I presume it does. This defense would be broken if the ship was considered to unseaworthy because the crew was inherently unseaworthy. Extra evidence would have to be shown, possibly evidence that the crew routinely sped, or broke other rules.
Dove would also have a Q clause defense. It could claim that, under the Penn Rule, that if the other vessel were speeding, it would have negligence per se, and that would be enough to satisfy the Q clause. The obvious problem with the defense is that Dove itself was also a negligence per se cause and the Q clause clearly requires that the other party is the cause without the fault or negligence of the carrier. Dove could argue that it wasn’t speeding, and thu s wasn’t a cause itself, but that would conflict with the §4(2)(a) defense argued earlier. Also, it’s not clear if negligence per se is enough to meet the Q clause. Under Quaker Oats v. Torvanger, the defendant must prove the damage was caused by something other than their negligence. It’s not clear that the presumption off Pennsylvania Rule will meet that burden, it is a merely a presumption. Evidence could be determined to make Dove partly responsible. And this is all predicated on Dove, not speeding, and the facts alledge that Dove was.
The 1910 Convention Art 4.,to which the parties flagged nations are signatories, says that dmaamges are portionate “without join and several liability” when the damages are to cargoes. The US no longer uses divided damages, and in US. V. reliable transfer adopted proportionate damages. The 1910 Convention also uses proportion ate damages. So if the US court adopt s the 1910 under choice of law, which it is likely to do because of the flags of the vessels, there is proportionment. And since they are not jointly liable, Hawk is merely responsible for 20% of the damages, even if Dove escapes liability under Cogsa. However, UK courts found that the 1910 might not call for portionment just on causation, but also on culpability. That might change the percentages, but 100% is still not going to be assigned to Hawk.
Question 3.
Since the helicopter crashed within Lousina territorial waters, Lousiana law can apply. The Death of the High Seas Act does not apply because the accident happened less than 12 miles offshore. Smothers clearly wasn’t a seaman, for many reasons. The OCSLA doesn’t apply either because that requires it be outside of 3 miles for Lousiana. General federal maritime law might doesn’t apply either. The requirement for admiralty jurisdiction is locality and nexus. Since the crash happened on navigable water. The nexus has a two part test. Was the event disruptive to martime commerce, and was it a martime activity. It can be argued that a helicopter crashing en route to a platform is disruptive to maritme commerce. However, courts have held that oil drilling isn’t martime. But the crash itself might be disruptive because of search parties and clean up. It might cause rerouting around the debris field. The second prong requires it be a maritime activity. Exectuive Jet said an airplane was not a maritime activity. I think the court would follow the Executive Jet case, a helicopter isn’t a maritime activity. You could however, argue that transporation over navigatable water is maritime activity. Inspecting a platform, which is the cause of the trip could also be declared maritime acitivity.
However, the courts would allow claim of action under state law, whether or not, general maritime law was applicable under the theory in Yamaha. The state claims of actions are maritime and local enougn to not undermine the uniformity of the federal general maritime law.
Assuming that general federal maritime is allowed, under that family could only recover puncianry losses, under Miles, there is no general maritime claim for loss of society for wrongful dealth. There is a survivorship claim, but only of injuries sustained before death. In such a sudden accident that would be small. Under state law however, there can be recovery, generally, for loss of society under their wrongful death statutes.
The law governing Albertson depends on if he is a sailor. To be a sailor he must work on a vessel of, must contribute to vessels function or mission, must be substantial duration fleet (at least 30% of the time), and must be substantial connection in nature of work. It appears that he would fail this test because he doesn’t work on a vessel. Unless that oil platform is a vessel because it isn’t fixed. Then the test would come down to if it was a substantial connection in nature to maritime work. This really depends on how much his actualy job, which we know nothing about, has in connection with maritime work. Herb’s welding seems to say that no oil workers are considered longshoremen, that kind of reasoning might apply to him being a seaman. He isn’t covered under OCSLA because he isn’t in the situs covered, in LA the length is 3 miles, and this was only 2. As disgusted he probably isn’t a longshoreman based on Herbs welding, but maybe his duty includes loading vessels at the platform, making him a longshoreman. Any person engaged in maritime employment counts under the status test. The situs test be probably fails on, because the injury happened in the water. It could be argued the beginning of the action stated on the platform. And the platform could qualify if it was customarily used for loading a vessel.

If he was found to be a seaman, the Jones Act, or unseaworthiniess, or maintances na cure would be allowed. Assuming that general federal maritime is allowed, under that the albertson family could only recover puncianry losses, under Miles, there is no general maritime claim for loss of society for wrongful dealth. There is a survivorship claim, but only of injuries sustained before death. In such a sudden accident that would be small. The same applies for Jones Act, and unseaworthniess claims. Under state law however, there can be recovery, generally, for loss of society under their wrongful death statutes. However, a state workers compensation statute will probably give some relief.
If he were a longshoreman or a OCLSA covered worker, he’d get workmans comp benefits under Longshoreman act. Also, in Gaudet, the SCOTUS allowed loss of society for longshorement under that act. However, Miles might over overruled it, not yet clear.
If he was covered as a Seaman. State law would not be applicable because it would undermine the uniformity of general martime law.


User avatar
Dany
Posts: 11580
Joined: Mon Sep 28, 2009 3:00 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Dany » Wed Dec 10, 2014 6:07 pm

Chevron should have an ad campaign called "Chevron Difference."

User avatar
Icculus
Posts: 1421
Joined: Tue Mar 02, 2010 12:02 am

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Icculus » Wed Dec 10, 2014 6:51 pm

Hey DF, NU specifically says that keeping any exams after grades are released, nvm sharing those exams, is a violation of the honor code. You, sir, are unethical and unhonorable. Though loved the read, especially that crim answer. I have all mine, too, and I cringe when I reread them.

User avatar
Desert Fox
Progressively loosing literacy
Posts: 14423
Joined: Thu Sep 04, 2014 4:34 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Desert Fox » Wed Dec 10, 2014 6:54 pm

Icculus wrote:Hey DF, NU specifically says that keeping any exams after grades are released, nvm sharing those exams, is a violation of the honor code. You, sir, are unethical and unhonorable. Though loved the read, especially that crim answer. I have all mine, too, and I cringe when I reread them.


Then they should probably read the Honor Code cause it doesn't say shit about that.

User avatar
BVest
Posts: 5702
Joined: Tue Mar 20, 2012 1:51 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby BVest » Wed Dec 10, 2014 6:57 pm

Dany wrote:Chevron should have an ad campaign called "Chevron Difference."


Targeting the ABA and state bar journals?

Ravenclaw23
Posts: 24
Joined: Sat Nov 29, 2014 5:46 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Ravenclaw23 » Wed Dec 10, 2014 9:10 pm

You don't have to, but I think bolding key terms helps. You want your points - it's easy for a professor to get lost in a HUGE block of text and miss something you wrote. Depending on the software you use, learn the bolding short cut ahead of time. (ex. on examsoft it's just command+B - super easy, doesn't waste any time & can only help)

User avatar
prezidentv8
Posts: 2821
Joined: Mon Dec 29, 2008 5:33 am

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby prezidentv8 » Wed Dec 10, 2014 9:22 pm

Desert Fox wrote:This got me an A

Code: Select all

[wall of text]
Muder
[wall of text]


Ah, yes, Muder, the most serious of crimes.

User avatar
Manteca
Posts: 1169
Joined: Fri Feb 07, 2014 4:55 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Manteca » Wed Dec 10, 2014 9:39 pm

DF spelling is the best

User avatar
Desert Fox
Progressively loosing literacy
Posts: 14423
Joined: Thu Sep 04, 2014 4:34 pm

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Desert Fox » Wed Dec 10, 2014 9:39 pm

This should also dispell the idea that it's a shtick.

Stylistics
Posts: 53
Joined: Wed Oct 01, 2014 3:45 am

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby Stylistics » Wed Dec 10, 2014 10:28 pm

OK 1. What's the serious answer? Or am I supposed to infer from all the DF examples (though they got varying grades) that spellcheck and grammarcheck are definitely NOT necessarily?

2. If we're in the business of sharing past answers, can I share 1 wrote this semester? It's the fact pattern as I remembered it and how I wrote my answer--in outline/bullet form.

User avatar
A. Nony Mouse
Posts: 22846
Joined: Tue Sep 25, 2012 11:51 am

Re: So pretty much don't check, edit for grammar, italicize, etc

Postby A. Nony Mouse » Wed Dec 10, 2014 10:34 pm

I really don't think you should share an answer to an exam you took this semester and haven't got a grade on yet. Some schools have restrictions on sharing exam questions.

And no, spellcheck/grammar check are not required, unless your spelling/grammar are so bad that your prof can't understand you. Now, if you and someone else with impeccable spelling/grammar get basically the identical points, some profs will reward the good writing. Mostly if profs are going to grade significantly on writing (rather than just content) they will tell you ahead of time, though.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: No registered users and 10 guests