Ghen v. Rich

Facts

Fin-back whales visit the easterly part of Massachusetts Bay in the early spring. Fishermen from Provincetown chase them in open boats and kill them with bomb-lances fired from guns made for that purpose. A killed whale sinks at once, but in one to three days it rises and floats. Some float ashore and are stranded, and some drift out to sea and are lost. Each boat's crew has its own mark on its lances, so the killer can be identified. The usage on Cape Cod for many years has been that the person who kills a whale this way owns it, and the finder usually gets a small salvage payment (a reward for saving property) for sending word. On the morning of April 9, 1880, the libellant, who had worked in this business for ten years, shot and instantly killed a whale in Massachusetts Bay. It sank. On the morning of the 12th, Ellis found it stranded on a beach in Brewster, 17 miles away. Ellis did not send word to Provincetown, as is customary. He advertised the whale and sold it at auction to the respondent, who shipped off the blubber and tried out, or rendered, the oil. The libellant learned of the find on the 15th and claimed the whale. Neither Ellis nor the respondent knew who killed it, but they knew or might have known that some person in this business had shot it with a bomb-lance.

Issues

1. Is the Cape Cod usage, under which the person who kills a whale with a bomb-lance owns it, valid against a finder who did not know who killed the whale?
2. Did the libellant own the whale when it was found stranded on the beach, so that the respondent who bought it from the finder owes him its value?

Holding

The Cape Cod usage was valid, so the property in the whale was in the libellant who killed it. The respondent, who bought the whale from the finder and tried out the oil, was liable for the oil's market value, less the cost of trying it out and preparing it for market, with interest from the date of conversion.