Ghen v. Rich
8 F. 159 (1881) (1881)
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Rule of Law:
When a custom or usage of a particular trade is well-established, reasonable, and necessary for the survival of that industry, it can be sufficient to establish a property right in a wild animal, even if it modifies the general common law rule requiring actual physical possession.
Facts:
- In the early spring, fishermen from Provincetown hunted fin-back whales in Massachusetts Bay using bomb-lances fired from open boats.
- When killed, these whales would sink to the bottom and rise to the surface one to three days later, often floating ashore.
- A long-standing custom on Cape Cod, undisputed for many years, was that the whaler who killed a whale with their identifiable lance was considered its owner.
- On April 9, 1880, the libellant (Ghen) shot and instantly killed a fin-back whale, which immediately sank.
- On April 12, a man named Ellis found the whale stranded on a beach 17 miles from where it was killed.
- Instead of following the custom of notifying Provincetown whalers, Ellis advertised and sold the whale at auction to the respondent (Rich).
- The respondent took possession of the whale and processed its blubber for oil.
- Neither Ellis nor the respondent knew the libellant had killed the whale, but they were aware it had been killed by a bomb-lance from someone in the whaling business.
Procedural Posture:
- The libellant (whaler) filed a libel in admiralty in the U.S. District Court for the District of Massachusetts against the respondent (purchaser).
- The libellant sought to recover the market value of the oil obtained from the whale.
- The case was tried before the District Court.
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Issue:
Does a long-standing custom within the whaling industry, which dictates that the party who kills a whale with a uniquely marked lance owns it, establish a valid property right, even if the whaler does not take immediate physical possession of the carcass?
Opinions:
Majority - Nelson, D. J.
Yes. A custom can establish a valid property right when it has been recognized and acquiesced in for many years, is necessary for the continuation of the industry, and requires the first taker to perform the only act of appropriation possible in the nature of the case. The court reasoned that while the general rule requires firm possession to claim a wild animal, whaling customs are a valid exception. Citing precedents like Swift v. Gifford, which upheld the 'iron holds the whale' custom, the court found this local usage equally reasonable. The court emphasized that without upholding this custom, the fin-back whaling industry would cease to exist, as no one would invest the labor and risk if a chance finder could appropriate the fruits of their work. The custom works well in practice, as shown by the industry's growth under it, and it even provides for a reasonable salvage award to the finder, making it equitable.
Analysis:
This case is a foundational decision in property law, illustrating how courts can incorporate industry custom to modify the traditional common law rule of capture. It establishes that property rights are not absolute and can be context-dependent, particularly when a rigid application of a general rule would destroy a valuable industry. The decision provides a framework for analyzing ownership claims where actual physical possession is impractical, influencing later cases involving disputes over natural resources like oil and gas. The court's reasoning prioritizes economic utility and the established expectations of a community over a formalistic application of possession doctrine.
