## Facts

- Ghen, a Provincetown whaler, hunted fin-back whales in Massachusetts Bay using bomb lances marked with a distinctive device identifying the killing crew.
- In this fishery, a fin-back whale killed by bomb lance sinks immediately and commonly resurfaces and drifts ashore days later.
- A long-standing Cape Cod custom provided that the whaler who kills a whale with an identifiable bomb lance owns it; a beach finder is expected to notify Provincetown and is paid a small salvage fee for assistance.
- On April 9, 1880, Ghen shot and killed a fin-back whale with a marked bomb lance; the whale sank.
- On April 12, 1880, Ellis found the whale stranded on a Brewster beach within the tidal zone, about 17 miles from where it was killed.
- Ellis did not notify Provincetown; instead, he advertised the whale and sold it at auction to Rich.
- Rich removed the blubber and rendered the whale into oil.
- On April 15, 1880, Ghen learned of the whale and promptly sent a representative to assert his ownership claim.
- Ellis and Rich did not know the whale was Ghen’s, but they knew or could have determined it had been killed by a bomb lance used in the local fishery.

## Issues

1. Whether a whaler who kills a fin-back whale with an identifiable bomb lance acquires ownership under established local custom even though the whale sinks and later washes ashore.
2. Whether a finder who sells such a whale, and a purchaser who processes it, are liable to the whaler in trover for conversion notwithstanding the purchaser’s good faith.
3. Whether the custom is sufficiently reasonable and established to define property rights in this specialized fishery.

## Decision

- The court entered judgment for Ghen.
- The court held that the Cape Cod whaling custom vested title in the whaler who killed the whale with a marked bomb lance and did all that was practicable to secure it.
- Ellis, as finder, acquired no title and was entitled only to a customary salvage allowance.
- Rich was liable in trover for the value of the whale, subject to deduction for appropriate expenses consistent with the remedy awarded.

## Legal Principles

- In industries where continuous physical possession is impracticable, property rights in ferae naturae may be determined by a long-standing, uniform, and reasonable trade custom that identifies the first effective appropriation.
- A person acquires ownership of a wild animal when, given the nature of the activity, the person has done all that is reasonably possible to appropriate it and has marked it in a manner that identifies the taker.
- A finder of known industry-taken property obtains no ownership interest; the finder’s role is limited to salvage-type compensation when the governing custom so provides.
- A purchaser who takes and converts property from one without title is liable to the true owner, even if the purchaser acted in good faith, when circumstances indicate the property likely belonged to another and ordinary practices call for inquiry.

## Conclusion

The court enforced a settled Cape Cod whaling custom to award ownership of a bomb-lance-killed fin-back whale to the whaler who killed and identified it, treating the finder as entitled only to salvage and holding the downstream buyer liable in trover for converting the whale.


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