Citation. 8 F. 159 (D. Mass. 1881)
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A whale washed up on a beach. The Defendant, Rich (Defendant) purchased the whale at an auction. The crew of the Plaintiff, Ghen’s (Plaintiff) whaling ship killed the whale and left their marking in the whale.
Synopsis of Rule of Law.
Reasonable local usage gives title to the first taker of a whale who by acts of appropriation.
Facts.
The Plaintiff, a fisherman, shot a fin-black whale with a bomb-lance identifying the whale as his. The whale immediately sank to the bottom of the ocean, but floated ashore three days later, 17 miles from where it was killed. Community usage provides that a Finder of the whale notifies the owner and they come and remove the whale. The owner provides a fee for the finder’s services. This method is used because a whale swims very fast and cannot be taken by harpoon and line. The Finder, instead of following custom, advertised and sold the whale to the Defendant. Neither the Defendant nor the Finder knew Plaintiff had shot the whale, but they should of known because the whale had been killed with a bomb-lance.
Issue.
Whether title to a whale is acquired under reasonable local usage when only an unequivocal mark of appropriation is possible?
Held.
Yes. The Plaintiff, by using an identifying bomb-lance, did everything practicable in order to secure the whale. Although local usage should not trump maritime law, a custom, if embraced by the entire industry for an extended period of time, can be enforced. Since this local custom allows the whaling business to remain viable it should be enforced.
Discussion.
The common law mandates that control is a necessary prerequisite to someone being able to possess a wild animal. However, the instant case is unique. First, the Plaintiff did everything in his power to possess the animal. Second, the widespread custom in the industry recognized this as the only realistic form of possession.
