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Ghen v. Rich | 8 F. 159 (1881)
Have you ever wondered who owns a dead whale that’s washed ashore on a New England beach? If so, look no further than the 1881 decision in Ghen versus Rich.
Ghen was a whaler operating in the Massachusetts area. He hunted fin-back whales using a bomb lance, which was a type of harpoon that exploded when it struck the target. Unfortunately for Ghen, fin-back whales weren’t easy to retrieve after they’d been harpooned. Once killed, the fin-backs would immediately sink to the bottom of the ocean, but resurface in a few days. After resurfacing, some whales could be retrieved by boat, some would float out to sea, and others eventually just washed ashore.
When a whale was found on the beach, local custom at the time was for the finder to notify the whaler who killed it. The whaler would then collect the dead whale and pay the finder a small fee. Like most other whalers in the area, Ghen’s bomb lance displayed his identifying mark, so that whoever found the dead whale would know he’d killed it. This local custom had been followed in the Cape Cod area for many years.
In April of 1880, Ghen killed a fin-back whale using a bomb lance. As usual, the whale immediately sank. Three days later, Ellis found it washed ashore on a beach about 17 miles away. Instead of complying with the local custom and notifying Ghen, Ellis auctioned the whale and sold it to Rich, who processed the whale into oil and sold it at market.
Neither Ellis nor Rich knew that Ghen had actually killed the whale. However, Ellis and Rich should’ve at least recognized that the whale had been killed by a whaler’s bomb lance.
A few days later, Ghen learned that Ellis had found and sold the dead whale to Rich. Ghen sued Rich in Massachusetts federal court to recover the value of the dead whale. Ghen claimed that he rightfully owned the whale in accordance with the recognized local custom. Rich contended that, having found the dead whale on the beach, he owned it, and that the local custom was irrelevant.
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