Taber v. Jenny

United States District Court for the District of Massachusetts · 1856 · Property

Propertyfirst possessionwhalingsalvagefinderderelict propertyabandonmentconversion

Facts

A boat from the ship Hillman pursued, killed, and took possession of a whale in the Ochotsk Sea, then anchored it with an anchor and tow-line and left a waif on it because fog and distance prevented immediate retrieval. A few hours later, a boat from the Zone found the whale, removed the waif, took the whale to the Zone, and cut it in; the crew also found Hillman irons and took aboard the anchor and rope. The Hillman returned in less than twenty-four hours to search for the whale, and its representatives later demanded the whale's oil and bone, which respondents refused and sold. Respondents also relied on a referees' award, but one referee had prejudged the matter and the umpire decided without hearing the parties or witnesses.

Issue

Whether title to the whale remained with the Hillman after it was temporarily left anchored and marked at sea, so that the Zone's taking was a wrongful conversion rather than a lawful appropriation by a finder. A further issue was whether the asserted referees' award barred the libel and how damages should be measured.

Rule

When property at sea has been captured, killed, and reduced to possession, and the owner leaves it only temporarily with the intention to return and with unequivocal marks of appropriation, title remains in the owner. A finder of such property cannot convert it to his own use and at most has rights as a salvor, which depend on good faith and may be forfeited by wrongful conversion. An award is not binding where a referee had prejudged the case without the other side's knowledge and the umpire decided without hearing the parties or their evidence.

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

While whaling in the Bering Sea, a boat from the Aurora kills a whale, fastens it with a heavy anchor and line, and plants a marked flagstaff in the carcass. Thick ice and fading light force the crew to return to the ship, intending to come back at dawn. Three hours later, a boat from the Marston finds the whale still anchored, removes the flagstaff, and takes the whale to its ship to process it.

Who has the superior property right to the whale?

Explanation. The governing rule is that once the whale has been captured, killed, and reduced to possession, it becomes the captor's absolute property. Temporary separation at sea does not defeat that title when the captor intends to return and leaves unequivocal marks of appropriation, such as an anchor, line, or waif. The later finder cannot acquire ownership by taking and converting it.