Caseflicks

District Court, D. Massachusetts • 1881

Ghen v. Rich

8 F. 159 | 1881 U.S. Dist. LEXIS 131

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Takeaway

In short, this case enforces a settled, reasonable industry custom when the hunter has done all that the nature of the hunt allows to claim the animal, preventing a later finder from taking the fruits of the hunter's labor.

Background

Ghen, a Provincetown fisherman, pursued fin-back whales by firing bomb-lances from shore-based open boats. A whale struck and killed by this method ordinarily sank, then resurfaced one to three days later. Cape Cod whalers had long followed a usage under which the person who killed such a whale owned it, even if it later washed ashore; the finder would notify the killer and receive salvage.

On April 9, 1880, Ghen shot and instantly killed a fin-back whale near Cape Cod. The whale sank and, three days later, washed ashore at Brewster, about seventeen miles away. Ellis found it but, rather than notify Provincetown whalers as customary, auctioned it. Rich bought the whale, removed its blubber, and rendered the oil. Although neither Ellis nor Rich knew Ghen was the particular killer, they knew or could have learned that the whale had been killed with a marked bomb-lance by a participant in the fishery.

Ghen brought this admiralty libel to recover the whale's value. The district court held for Ghen and entered a decree of $71.05, without costs.

Issues

Issue #1

Whether the longstanding Cape Cod custom giving ownership of a bomb-lanced fin-back whale to the person who killed it was valid and enforceable.

Holding

Yes. The custom was reasonable and valid, so Ghen acquired title when he killed the whale.

Reasoning

The custom was settled, long accepted, and confined to a small and specialized industry. Every whaling crew used distinctive marks on its lances, allowing the whale's killer to be identified, and the custom had gone undisputed for many years. A trade-wide custom of this kind did not threaten the general law of property or disturb ordinary commercial expectations.

The rule required the first taker to do everything that was practically possible to appropriate this particular animal. A fin-back whale could not be taken by harpoon and line because of its speed, and a whale killed with a bomb-lance immediately sank. The killer therefore could not retain physical possession or mark it in a more direct way before it disappeared beneath the water.

The custom was necessary to preserve the fishery. Without a rule protecting the hunter who killed the whale, a chance finder could take the value of the hunter's labor and investment. That risk would deter people from undertaking the dangerous, skilled, and capital-intensive work of hunting these whales. The custom also protected finders by allowing reasonable salvage for reporting or securing the whale.

Prior whaling cases supported recognition of specialized customs where they reflected the practical realities of the trade. In particular, cases recognizing possession through anchoring a dead whale or through the industry rule that 'the iron holds the whale' showed that property rules may accommodate established whaling practices. The court also observed that ordinary common-law principles might reach the same result because Ghen had done all that the circumstances permitted to make the whale his own.

Issue #2

Whether Rich, as the purchaser of the whale from the beach finder, acquired ownership superior to Ghen's claim.

Holding

No. Ellis could not convey a better title than he possessed, and Rich's purchase did not defeat Ghen's ownership.

Reasoning

Once Ghen acquired property under the valid custom, the stranded whale remained his property. Ellis found the whale but did not follow the established practice of notifying the owner and seeking salvage. His auction therefore could not transfer ownership away from Ghen.

Rich and Ellis knew, or could readily have determined, that the whale had been killed by a bomb-lance in the local fishery. Their lack of knowledge that Ghen was the specific hunter did not alter the result, because the recognized custom assigned ownership to the identifiable killer rather than to the person who happened upon the carcass.

Issue #3

What damages were recoverable for Rich's conversion of the whale.

Holding

Ghen could recover the market value of the oil produced, less the cost of rendering and preparing it for market, plus interest from the conversion date.

Reasoning

Because Rich had removed the blubber and rendered it into oil, the appropriate measure was the net market value of that oil rather than the value of an intact whale. The court deducted the costs necessary to try out the oil and prepare it for sale, then added interest from the date of conversion. It awarded Ghen $71.05 and denied costs because the case presented a new and important question that both sides litigated chiefly to obtain a ruling.