A custom among whale men 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.
Libellant fisherman shot a fin-back whale with a bomb-lance identifiable as belonging to him, which caused it to sink to the bottom of the ocean. 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. Libellant sued respondent for conversion of the whale. The court granted judgment to libellant, 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.
May the libellant claim title to the whale under his usage?
The court noted the holding in the case of Swift v. Gifford where Judge Lowell stated that: It requires in the first taker the only act of appropriation that is possible in the nature of the case. Unless it is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder. It gives reasonable salvage for securing or reporting the property. That the rule works well in practice is shown by the extent of the industry, which has grown up under it, and the general acquiescence of a whole community interested to dispute it. It is by no means clear that without regard to usage the common law would not reach the same result. That seems to be the effect of the decisions in Taber v. Jenny and Bartlett v.Budd. If the fisherman does all that it is possible to do to make the animal his own,that would seem to be sufficient. Such a rule might well be applied in the interest of trade, there being no usage or custom to the contrary. But be that as it may, I hold the usage to be valid, and that the property in the whale was in the libellant.