When could Tom Hanks in Cast Away be Legally Presumed Dead?

Spoiler Alert: This post reveals parts of the movie Cast Away

As I read through my bar review materials regarding the law of Evidence, my thoughts drift to the movie Cast Away featuring Tom Hanks as Chuck Noland, a FedEx employee who, subsequent to a plane crash, is stranded on a deserted island. I am not sure how long he actually spent on the island, but from the descriptions on Wikipedia and IMDB he was away for at least 4 years.

How does this relate to the law of Evidence? Well, according to the Multistate Bar Exam materials under the category of procedural issues related to evidence, there exist certain presumption rules that depend on a particular inference drawn from an ascertained set of facts. One specific presumption is known as "death from absence."

For multistate purposes if someone is unexplainably absent for a continuous period of 7 years without being heard from, then he or she is presumed dead. If Chuck Noland was only away for a period of 4 years as noted above, then he has not met the 7 year required period. The language of the presumption rule raises a question for me, which I cannot answer at this point, based on the scenario in the movie. In the movie, Chuck Noland's disappearance was not "unexplainable" as his employer (FedEx) and his girlfriend (would have been fiancée had he made it home from the flight, and of course had she said "Yes!") had knowledge that the FedEx flight Chuck Noland was on had endured bad weather and subsequently crashed in an unknown location. Does having an explanation for being missing undermine an attempt to presume someone's death based in the language of the multistate review materials? I don't know the answer but perhaps I am reading it too technically as the main point is that the person be missing for 7 years, especially in relation to a New York distinction which I will explain next.

Interestingly, if Chuck Noland's estate or some other legal interest were subject to a case in New York state (I think he lived in Tennessee, but let's assume he was from New York or that New York law governed such a situation), the presumption is slightly different under New York law. Under New York law the absence period is just 3 years, but a diligent search for the missing person is required. Based on New York law it seems that Chuck Noland would be presumed dead because he was missing for 4 years and, if I remember correctly, the FedEx company and government rescue officials did conduct a diligent search for him based on the plane's last known coordinates.

But for those of you who have seen the movie, thanks to his friendship to Wilson (see volleyball photo to the right), Chuck Noland survived and returned to his girlfriend only to learn that she had moved on and married some other guy. So sad, maybe Chuck would be "better off [presumed] dead."

Did the Ewoks Violate International Law?

In Star Wars Episode VI: Return of the Jedi, the Rebel Alliance sent a strike team to the planet of Endor, which the Ewoks (See photo of the lovable Ewok named Wicket to the right) inhabit, in their fight against the Galactic Empire. Shortly after landing on the planet they were making their way to their objective (i.e., the Empire's bunker that is the source of the protective "invisible" shield for the Death Star battle station orbiting Endor). At one point Chewbacca's senses were heightened and he clamored toward a dead animal carcass. The rest of the strike team approaches also and Han Solo says to Chewbacca, "Always thinking with your stomach." (click link for Han's audio). Turns out the carcass was bait for a trap set by the Ewok's and as Chewbacca grabbed at the carcass it set off the trap and the strike team was swooped up into a net and lifted into the air. The Ewok's arrived shortly thereafter and took the strike team as "prisoners."

One source of international law that regulates the conduct of hostilities that may be applicable to the above scenario is the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended May 3, 1996 (Amended Protocol II). Amended Protocol II article 7 prohibits "the use of booby-traps and other devices" involving "(j) animals or their carcasses." It should be noted that booby-traps are commonly understood as a device designed to kill or maim an unsuspecting combatant.

As an initial matter there are some questions of law applicability here. First, from a temporal view Amended Protocol II was adopted in 1996 whereas Return of the Jedi, which premiered in 1983, states in the opening sequence that the story takes place "a long time ago in a galaxy far, far away . . . ." As such, the provisions of the Amended Protocol II can not reach back in time to regulate the conduct of hostilities. Second, related to the temporal issue, the parties to the conflict in Return of the Jedi are, arguably, the Ewok's, the Rebel Alliance, and the Galactic Empire but given that international law is based on party consent (i.e., choosing to become a party to a particular treaty or convention) these parties could not have consented to be bound by the provisions in Amended Protocol II because it did not exist at the time of the conflict.

Assuming arguendo that the Amended Protocol II does apply to the scenario in Return of the Jedi, is the use of the animal carcass a violation of international law? It would seem that it is not, for at least two reasons.

First, as alluded to above, the Ewoks at the time of the booby-trap scene are not a "party" to the conflict. The conflict during the movie is between the Rebel Alliance and the Galactic Empire. However, subsequent to the booby-trap scene the Ewoks do join forces with the Rebel Alliance against the Galactic Empire. Given that Amended Protocol II's provisions are designed to regulate the conduct of hostilities among parties to a conflict and as such the Ewoks did not violate its provisions because at the time of the booby-trap scene the Ewoks were not a party to the conflict. Essentially this is third law applicability question as discussed above but given that it was more specific to the Ewoks I have discussed it separately.

The second reason why it seem the Ewoks are not in violation of Amended Protocol II is based on the nature of how the carcass was employed. In essence, the Ewoks set out the carcass as bait to lure another creature to be drawn and captured into a giant net. This does not comport with the definition of booby-traps that are designed to kill or maim a combatant. Instead the Ewoks employed a "live trap" wherein the captured individuals were not killed or harmed and as a result this seems to be outside the reach of what Amended Protocol II is designed to regulate. This is not to say that the Ewoks are entirely innocent. I mentioned above that the Ewoks took the strike team as prisoners, but this is not really true as they were taken back to the village and were being prepared by the Ewoks to be cooked for dinner. This further evidences that the trap the Ewoks set was not part of their participation in hostilities but rather as a means to sustain themselves nutritionally.