Ghen v. Rich

United States District Court for the District of Massachusetts · 1881 · Property

Propertyacquisitionwild animalscustomwhalefirst possessionfirst possessionferae naturae

Facts

Provincetown fishermen hunted fin-back whales by shooting them with bomb-lances from open boats; when killed, the whales sank and typically rose to the surface one to three days later, often washing ashore. For many years, the usage on Cape Cod had been that the person who killed a whale in this manner owned it, and the finder of a stranded whale would notify Provincetown and receive a small salvage. On April 9, 1880, the libellant shot and instantly killed the whale in question, which later stranded on a beach in Brewster and was found by Ellis. Instead of reporting the whale, Ellis auctioned it to the respondent, who processed the blubber into oil, even though Ellis and the respondent knew or could have known that the whale had been killed with a bomb-lance by someone engaged in the business.

Issue

Whether a fin-back whale killed by the libellant with a bomb-lance, but not yet physically reduced to manual possession because it sank and later washed ashore, became the libellant's property under the established Cape Cod usage. If so, whether the respondent was liable for converting the whale by purchasing and processing it after it was found stranded.

Rule

A local usage in a distinct trade is valid when it is reasonable, long recognized and acquiesced in, limited in application, and treats as ownership the only act of appropriation that is possible in the nature of the case. Under such a usage, the person who kills a fin-back whale in the customary manner acquires property in it, and a finder who takes or sells the whale does not obtain title against the killer.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

For thirty years, swordfish crews operating out of Gloucester, Massachusetts have used marked sink-darts that kill large swordfish that then drop deep and usually wash ashore a day later. Everyone in that fishery follows a settled practice that the crew whose mark is on the dart owns the fish, while the beach finder is paid a small salvage for reporting it. Nora Pike kills a fish with her marked dart, and the next day Leo Marr finds it on a beach in Maine and sells it to Harbor Flame Rendering, which processes it after noticing the marked dart wound.

Who has the superior property claim to the fish?

Explanation. The controlling rule is that a longstanding, generally acquiesced-in custom within a distinct trade is valid when it is reasonable, narrowly limited, and treats as ownership the only act of appropriation possible in the circumstances. Here, the fishery custom is settled, limited to a specialized business, and gives title to the crew whose marked dart killed the fish because immediate manual possession is not practicable. The finder and subsequent processor do not defeat that title.