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Law School Case Brief

Ghen v. Rich - 8 F. 159 (D. Mass. 1881)

Rule:

A custom among whalemen in the Arctic seas, that the iron holds the whale, is reasonable and valid to bestow title upon the party who first harpoons a whale. The usage for the first iron, whether attached to the boat or not, to hold the whale, is fully established. 

Facts:

Libellant fisherman, Ghen, shot a fin-back whale with a bomb-lance identifiable as belonging to him, which caused the whale to sink to the bottom of the ocean. This method was used because the fin-back whale swims too fast to be killed by harpoon and line. A local custom existed in the community that when a whale resurfaced, the fisherman would be notified and the finder would be paid a small salvage fee for his services. In this case, the whale was found on the beach by a third party, who sold it to respondent Rich. Ghen sued Rich for conversion of the whale. 

Issue:

May Ghen claim title to the whale?

Answer:

Yes

Conclusion:

The court granted judgment to Ghen, holding that the local usage gave title to the whale since it was reasonable and required the first taker to commit the only act of appropriation that was possible in that situation, i.e. embedding the identifiable bomb-lance in the whale.

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