Swift v. Gifford

United States District Court · Property

Propertywild animalscapturewhaling customusagefirst ironpossessionpursuit

Facts

The opinion states that the parties were engaged in the whale fishery and that the dispute concerned ownership of a whale pursued by different vessels. The respondent relied on a long-recognized custom among American whalemen that "the iron holds the whale." Under the relevant part of that usage, the vessel whose crew first struck the whale effectually, so that the iron remained fast while the pursuit continued, had the better right. The libellants' master ultimately yielded the whale in conformity with that custom, but the libellants challenged the custom's legal validity.

Issue

Whether a well-established usage in the whaling industry may govern property rights in a whale, despite the common-law rule that title to a wild animal ordinarily requires actual and complete possession. More specifically, whether the custom giving the better right to the vessel whose crew first struck and held the whale with an iron during continuing pursuit is valid and enforceable.

Rule

Although the common law generally gives no property in a wild animal by mere wounding and requires actual and complete possession, a general and long-established usage of an entire trade may validly vary that rule where the rule's application is uncertain and the custom is reasonable. In the whale fishery, the reasonable and enforceable custom is that the party who first strikes a whale so effectually that the iron remains fast has the better right, so long as the pursuit continues.

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

Two whaling vessels from New Bedford are hunting in Arctic waters. Nora Pike's crew strikes a whale first, and their harpoon remains fast while they continue chasing it; twenty minutes later, Eli Rowan's crew arrives from another vessel and kills the whale after a short struggle.

Which vessel has the better property right to the whale?

Explanation. The majority upheld a long-established, general whaling usage as a valid variation on the common-law capture rule. Under that divisible and reasonable custom, the vessel that first strikes the whale so effectually that the iron remains fast has the better right, so long as the pursuit continues. A later crew's killing the whale does not defeat that priority during the ongoing chase. (Derived from Swift v. Gifford (n.d.).)