Ghen v. Rich – Case Brief Summary
Summary of Ghen v. Rich, 8 F. 159 (Mass. 1881).
Plaintiff Ghen killed a whale at sea leaving his identifying bomb-lance in the whale. The custom and usage in the whaling industry in Cape Cod had been that one who kills a whale using a specially marked bomb lance owns the whale. If such a whale were found on a beach the finder would notify the killer and receive a finder’s fee.
The whale later washed up on shore 17 miles away and was discovered by Ellis. Ellis knew or should have known of the custom and usage of the whaling industry regarding the finding of a lost whale killed by another. Ellis sold the whale at auction to defendant Rich who then shipped off the blubber. Ghen discovered the fate of the whale and initiated a libel action against Rich to recover the value of the whale.
- Can the court look to custom and usage within an industry to determine the rule of law regarding the ownership of property?
- Who is the owner of a whale that was harpooned and then found on shore by another?
Holding and Rule
- Yes. The court can look to custom and usage within an industry to determine the rule of law regarding the ownership of property.
- The party who harpoons the whale is the owner even if it is later discovered on the shore by another.
The rule that the killer of a whale is the rightful owner has been recognized and acquiesced in for many years and embraces an entire industry. The rule requires the first taker to do all that is possible under the circumstances and offers reasonable salvage to the finder for securing or reporting the property. Unless it is sustained, the whaling industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by a chance finder.
Judgment for plaintiff Ghen.
See Pierson v. Post for another property law case brief involving an issue of property rights in animals ferae naturae, i.e. animals that are wild by nature and not domesticated.