Ghen v. Rich, U.S. District Ct., Dist. of MA (1881)
Author: Bram

Parties: Libellant (appellant) is the man who shot the whale in the ocean.  DF was conveyed the whale through bargain and sale by seller who found the whale on the beach.

Cause of action/remedy sought: The following is a cause of action (a libel: complaint filed against a ship or goods) to recover the value of a fin-back whale.

Procedural History: Trial court found for Rich.  On appeal, decree for libellant Ghen.

Facts: Ghen shot whale 4/9/1880; found by Ellis on 12th; auctioned off by Ellis (who not according to custom, did not send a call to Provincetown); sold to Rich, who shipped off the blubber and tried the oil; 15th libellant hears of the whale and goes to claim it, neither respondent nor Ellis knew the whale was killed by Ghen, but by the way the animal was killed, they could tell it was killed by a whale hunter. 

Issue(s): Under property law, does the shooting of a whale by traditional means equate to possession of the animal's remains as the shooter's property, when the animal itself is left with the anchor from the ship which shot it, but is still sold to a third party?

Holding: Yes.  Both common law tradition and previous case law show that acquisition in the fishing industry is determined by who kills the fish is the possessor of the fish.

Court's Rationale/Reasoning:  The court had federal precedent to this effect, which showed the hunter who kills and lays appropriate claim to the animal is the rightful owner of the animal with possession (Bartlett v. Budd).  In another case, historical tradition regarding the job itself lent to a decision for a hunter (Swift v. Gifford).  That case also held that this was fishing, and thus is only limited to fishing.

If such a traditional law were to be overturned, it would make the fishing industry very uncertain as to the ability to lay claim for one's work and subsequent quarry.  The fact that the rule has worked well is shown by the extent in which the industry has grown up under it, and the fact no one disputes the rule either is important.

Rule: In fishing only, the taker must make an act of appropriation that is possible in the nature of the case.  If the fisherman does all that is possible to do to make the animal his own, that would seem to be sufficient.

Did court avoid issues?: No.

Dicta: The rule of damages is the market value of the oil obtained from the whale, less the cost of trying it out and preparing it for the market, with interest on the amount so ascertained form the date of conversion.