Ghen v. Rich (1881) (whale hunting)

a.       P struck and killed a whale. After the whale’s body came ashore, D took it and sold it. P is suing for ownership of the whale.

b.      First to claim it and kill it gets ownership. Nelson, J. said to follow fishing customs as they “only affect a few people”. Custom is that the person who marks and kills the whale can claim ownership. If you do everything you can to secure ownership, then you are the owner.

c.       POLICY:

                                                              i.      why would anybody fish whales if you risk somebody else coming to take your whales

                                                            ii.      If we did NOT follow custom…then there would be no whaling industry

d.      2 readings of this case

                                                              i.      This clarifies P v P

                                                            ii.      Or, this case doesn’t ignores customs

e.       Come as close to actual physical capture as you can…same as P v P

f.       Courts do not necessarily need to follow customs, unless they promote the common good

                                                              i.      What’s going to happen to the industry if the custom is not followed?

                                                            ii.      Most people seem to think the custom is fair---a court will say that the custom trumps the common law

g.      Questions:

                                                              i.      1. The custom or usage described in Ghen v. Rich WAS essential to P’s case because if the custom was not followed, then “this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder”. The rule in Pierson v. Post would NOT have served the P well because the majority opinion stated that actual capture constitutes ownership.

                                                            ii.      2. Custom SHOULD matter when deciding cases, but we should not rely entirely on them. Norms/customs usually only take into account how they affect a particular group (sportsmen, fishermen) without thinking about how it will affect other groups.

                                                          iii.      3. Now, the Greenpeace custom is affecting the livelihood of others. In this situation, we must assess the aggregate “good” under both situations. We must then decide in the favor of the one that renders the most good.