Roger writing the LAWmag
Feb 2013

The Dolphin-Plaintiff: Kama v the New England Aquarium

Mr. Kama (Christian name unknown) was a Dolphin. He likely had some basic communication skills such as reacting to the smell of fresh fish and maybe even the ability to swim and clap upside down on command ... again, upon prospective presentation of said fish, preferably dead.

The rest of the facts are set out by Justice Wolf of the United States District Court of Massachusetts in Kama v New England Aquarium:

"Kama was born in captivity at Sea World in San Diego in 1981.

"Kama was transferred to the (New England) Aquarium in 1986 for breeding purposes and/or for public display.

"Kama, however, did not fit into the social climate at the Aquarium. As a result, he was not regularly on public display, nor featured in the Aquarium dolphin shows....

"Kama is now located in Hawaii, where he is being studied for his sonar capabilities (by the US Navy) .... Kama is able to associate with wild dolphins on a daily basis, and could swim away if he so desired."

Dolphin - Fotolia.comLocal animal welfare groups had some spare time and they saw and retained a local lawyer to sue the Navy on the sale of Kama into military servitude. The lawyer, Steven M. Wise enthusiastically if not proudly writes about his client in his book (the lawyer's book, not the dolphin's) Rattling the Cage which, incidentally, is one of the worst law books ever published.

There is no mention whether Messrs. Kama, Dolphin, and Wise, Esquire, ever had a meeting to discuss the lawyer's retainer or what exactly Kama was objecting to. Likely Wise couldn't even speak that ancient maritime law language, dolphinese.

But Wise seemed to know harm when he saw harm because he filed a claim against the aquarium in Mr. Kama's name.

Yes: Kama versus ....

This was not some rookie attorney error - it was either an attention-seeking device or Wise honestly believed that an animal could or should be able to sue in its own name, and the case was in design to advance that legal right on behalf of animals.

Whether this might open a can of worms or flies, or snakes, trout or deer, or not, Mr. Wise never mentioned.

The US Navy felt good about Kama but the animal welfare folk were sure that there was something amiss and horrific behind the navy's admission that they had spent $700,000 to train Kama and 3,500 man-hours in his training. Fears were rampant and to be frank, it would do the American public no good to see Kama gasping for water, bound and gagged on a AlJazeera video report, surrounded by heavily-armed Islamic terrorists shouting All Achbar [or perhaps, as Mr. Button suggests in his comment below, allah akbar].

Mr. Kama did not show up in Court and no deposition was sought of him. In fact, there was no evidence of harm to Mr. Kama. Chances were that since he had open access to the open ocean, that his new circumstances were suiting him just fine. Certainly, his dating life would have improved compared to the slim pickings at the New England Aquarium - no offence to any babe dolphins that might have been in captivity there. This new life would of been like ( for him.

Also, the food served by the US Navy has a pretty good reputation.

Kama v the NE Aquarium came before Justice Wolf on October 25, 1993 with a battery of some seven lawyers present, including Mr. Wise acting for Mr. Kama (first name unknown as previously mentioned).

In what should of been the quickest sumary judgment ever, the defendants challenged the naming of a dolphin as a plaintiff in a human court of law. The Court of King Neptune, maybe, but this was the other side of the beach in Florida.

Law 101: an animal cannot sue in his or her or its own right - whether that animal is an ant, an earthworm, a chimpanzee or a dolphin.

Still, the motion was resisted by Wise et. al. and Justice Wolf had occasion to put his thoughts down to writing, even dragging in the name of the United States President (then Bill Clinton) to good effect:

"This court will not impute to Congress or the President the intention to provide standing to a marine mammal without a clear statement in the statute.

"If Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly .... Animals are treated as the property of their owners, rather than entities with their own legal rights.

"Kama the dolphin lacks standing to maintain this action as a matter of law.

"Defendants have moved, therefore, for the removal of Kama's name from the caption of this case.

"This motion must be allowed."

It was a real tragedy that "Kama, a dolphin" was struck from the official style of cause so that the official law report name of the case is now:

Citizens to End Animal Suffering and Exploitation, the Animal Legal Defense Fund, Inc. and the Progressive Animal Welfare Society, Inc. versus the New England Aquarium, the Department of the Navy, the National Oceanic and Atmospheric Administration and the National Marine Fisheries Service.

Justice Wolf did not order costs against Kama, a dolphin but he should have as that would have made the case more interesting for legal observers.

Nor is there any news on the ultimate fate of Kama, whether he swims the sea a free dolphin, or whether he met a horrible death carrying a detonation charge against some Al quaeda submarine just outside the San Fransisco harbor.

But his case remains on record as either a dumb dolphin's claim (for reasons of potential defamation claims, and since he can't sue for defamation, we assign the qualifier "dumb" to the dolphin) or the first spark of future of animal rights.

It was heckuva fish story for a lawyer.


Kind to Animals Roger

Posted in Law Fun

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  • The Dolphin-Plaintiff: Kama v the New England Aquarium