Something has bugged me since our first discussion of the case in class. An exchange occurred between Lessig and Green, to the best of my memory, it occurred like this:

Lessig: (challengingly) And how many fearless Peerlesses were out there riding the high seas between Bombay and Liverpool? Green: (saucily) Thousands. Class: (breathless, bug-eyed with suspense) Lessig: Thousands (long pause) Right. There could have been thousands of Peerlesses out there for all we know.

I wonder if indeed there could have been thousands of Peerlesses out there: if in FACT, Peerless ships really do have so many peers. The court's reasoning and decision is controlled so much by what I read as infatuation with the coincidence that there were two ships running from Bombay to Liverpool by the name of "Peerless" that I wonder if we are free to assume there could be thousands of Peerlesses.

I think this small point is important because: if there really were so many ships by the same name (first of all, what would have been the point of naming those ships anyway), we should view the court as hopelessly out of touch and unfair. If the coincidence really is a BIZARRE and improbable one, then we can view the court in a more favorable light.

Or, to second guess the first point, is the real point that the fact that the court never even thinks to ask about the number of Peerless ships a demonstration of judicial arrogance in objectively interpreting contracts?

-- Anonymous, November 14, 1998

Answers

simpson says?

What does Brian Simpson say about this?

-- Anonymous, November 15, 1998

Peerlesses Aplenty

Good point, Katherine. This case strikes me as interesting for several reasons, ranging from the potential for using worthless pun "Pierless" to the question of just what to do with the undetermined number of synonymous ships plying the seas.

It's handy to remember that "peerless" and "best" aren't necessarily equivalent. You can be peerless at the bottom end of the scale, or peerless somewhere in the middle. Accordingly, it makes (logical) sense to allow for the possibility of infinite Peerlesses.

But the above sidesteps your question. When I first saw the case, my little social-engineering self said "Hang on! Why don't we just pass a law that says each ship must have a unique name, and create a registry to effectuate that law?" Drawing on an absolute lack of information to back this up, I'll assert that this case led to the creation of such a system, and that maritime law has been much benefited thereby.

At any rate, the Peerless redundancy (that sounds like a Ludlum novel) was probably rare enough to warrant the court's surprise. After all, one names one's boat at least partly to differentiate it from others. But if the court is focusing on the ambiguity of the phrase "ex Peerless" then it doesn't seem to me that it matters tremendously whether there were two or thousands.

=== Given the problems erupting on the Section 3 discussion list, the following is clearly marked as self-mocking humor ===

As for judicial arrogance, what did you think happens to arrogant law students when they grow up?

Paul

-- Anonymous, November 14, 1998

katherine, I think your statement of "the real point" is on target, and can be followed by this question: why didn't the court ask the parties if they knew at the time of the contract that more than one Peerless was roaming the seas?

The court accepts evidence which shows an objective ambiguity without bothering to ask if there was a subjective agreement. Another implication might be to think if the court asks if they knew of multiple Peerlesses (Peerli?) and they say yes, isn't that strong evidence that they meant something else, like the standard trade usage poor Milward is arguing for?

And to make this minor note even longer and more burdensome, a quick response to Paul: yes, whether there are 2 or 2,000 matters. If there are 2, it is plausible that they were attempting to specify a particular boat and made a mistake. If there are 2,000 then such a claim begins to look preposterous coming from sophisticated business people.

-- Anonymous, November 16, 1998

This might be a really stupid question, but who is Brian Simpson, and what does he have to do with Peerless?

Tawen

-- Anonymous, November 17, 1998

who am I?

I am the guy who wrote the article in 11 Cardozo L. Rev. 287 (1989).

who else would I be?

-- Anonymous, November 20, 1998

Who else indeed?

Dear Professor Simpson,

Some websites for your perusal:

http://sac.uky.edu/~bcsimp0/ http://home.earthlink.net/~bmsimpson/ http://home.att.net/~bsimpson/ http://bumper.kettering.edu/~simp6926/ http://gypsy.fsl.wvnet.edu/4557/staff/brian.html http://www.sqbla.org.uk/contact/co-bs.htm http://members.aol.com/simpsonbrn/index.htm http://www.empirenet.com/~lafaye/d0005/g0000079.html#I2525

But of course, there's the following: http://www.law.umich.edu/faculty/simpson.htm (and you misprinted your e-mail address; it's bsimpson@umich.edu )

Respectfully Submitted,

Paul

(Reinforcing my previously postulated distaste for good grades...)

-- Anonymous, November 20, 1998