23 F. Cas. 558
American whalemen from Massachusetts, who formed a large proportion of those following the whaling trade in the Arctic seas, had for many years recognized a custom by which the iron holds the whale.1 The libellants Swift and the respondent Gifford were both engaged in this trade.2 Their crews encountered a whale in circumstances where the libellants' crew first struck the animal with an iron that remained fast while the pursuit continued.3
The respondent's crew joined in the chase and killed the whale.4 Upon the conclusion of the hunt, the master of the libellants' vessel, which appears to have been the Rainbow, yielded the whale to the respondents in accordance with the prevailing custom.5 The libellants then brought a libel in admiralty against the respondent in the United States District Court for the District of Massachusetts.6
District Judge Lowell presided over the case.7 The evidence established that the custom had been concurred in for a long time by everyone engaged in the trade, with one witness tracing it back to the year 1800.8 A similar custom had been upheld in a prior decision by Judge Sprague in Bourne v. Ashley, where the first iron was held to give the better right.
The court noted that the English and Scotch whalemen followed a different usage under which the iron holds the whale only while the line remains fast to the boat.9 In the present dispute the decision turned on the validity of the American usage without regard to the chances of success the respondent's crew might have had when the others came up.10 The parties all understood the custom.11
Whether a usage among whalemen that the first iron affixed to a whale holds title to it is valid?12
Principles of law differ in their importance as well as in their origin, and while some represent great rules of policy beyond the reach of convention, others may be varied by usage which, if general and long established, is equivalent to a contract.13
Yes. The custom by which the iron holds the whale has been recognized for many years by American whalemen from Massachusetts who formed a large proportion of those following the trade in the Arctic seas.14
The evidence showed that the usage was concurred in for a long time by everyone engaged in the trade, with one witness carrying it back to the year 1800, and Judge Sprague had already found it established in Bourne v. Ashley.15
The usage is reasonable in regulating the conduct of crews from different vessels in actual pursuit. It prescribes that the first to strike so effectually that the iron remains fast obtains the better right while pursuit continues, thereby preventing dangerous quarrels over the division of spoils.16
The usage is valid because it is general, long established, and reasonable within the limited sphere of the whale fishery.17
Whether such a usage, if general and long established in the entire whaling trade, can vary the common law rule that actual and complete possession is required to acquire property in a wild animal?18
The rule of law invoked in this case is one of very limited application, the whale fishery being the only branch of industry of any importance in which it is likely to be much used, so a usage found to prevail generally in that business will not disturb the general understanding of mankind.19
Yes. The common law rule requiring actual and complete possession applies with difficulty in the whale fishery where multiple boats may strike the same animal, making the need for greater precision apparent through a clear conventional standard.20
The American usage, unlike the English and Scotch practice that requires the line to remain fast to the boat, has been concurred in by all participants in the trade and was understood by both the libellants Swift and the respondent Gifford in this case.21
Because the usage is divisible and reasonable so far as it relates to the conduct of men in actual pursuit, it validly varies the common law rule without introducing uncertainty into other areas of property law.22
The usage validly varies the common law rule because it is confined to a single industry, has been universally accepted within that industry, and serves to avoid conflict among competing crews.23