I think the difference between Ghen v Rich and the situation in Moby Dick is probably because Ghen involved bomb-lance whale hunting, and Wikipedia says bomb-lances weren’t in general use until the late 1850s - though it may also be a British versus American law divergence?
As I recall, when you kill a whale with a bomb-lance, the whale generally sinks and floats back up a couple of days later, so the general industry practice was to label your bomb-lances and then whoever found the whale later would contact the people who’d killed it, who would then pay a finder’s fee. In Ghen, a dude found a whale on a beach and, instead of contacting the people who’d killed it, sold it at auction! The court was like, look, it is Generally Understood in this Industry that killing a whale with a marked bomb-lance is enough to establish possession, and that’s beneficial to society because otherwise whalers would have to be waiting around all the time for whale corpses to resurface. The main takeaway was that the whalers had property rights in the whale because they had done everything in their power to take possession of it, and that the court could take into account the norms of the industry, so I think the calculus in bomb-lance whaling is just very different.
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timeasmymeasure
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Date: 2025-03-05 03:20 pm (UTC)As I recall, when you kill a whale with a bomb-lance, the whale generally sinks and floats back up a couple of days later, so the general industry practice was to label your bomb-lances and then whoever found the whale later would contact the people who’d killed it, who would then pay a finder’s fee. In Ghen, a dude found a whale on a beach and, instead of contacting the people who’d killed it, sold it at auction! The court was like, look, it is Generally Understood in this Industry that killing a whale with a marked bomb-lance is enough to establish possession, and that’s beneficial to society because otherwise whalers would have to be waiting around all the time for whale corpses to resurface. The main takeaway was that the whalers had property rights in the whale because they had done everything in their power to take possession of it, and that the court could take into account the norms of the industry, so I think the calculus in bomb-lance whaling is just very different.
(“Bomb-lance” - what a word!)