Facts: Local custom for whalers when capturing fin back whales is to use a bomb lance
with an identifiable marking. When the whales end up on shore, whoever finds the whale
informs the owner of the bomb lance and is given a small finders fee. In this case, a man
found a whale and instead of informing the rightful owner, sold it to D, and D, knowing
of the custom and being a expert in whaling profited from this. P sued claiming that local
custom gives him title over the whale that D could not appropriate
Issue: Can local custom be used as a determining factor to provide title over a wild
animal?
Holding: Judgment for P, who is awarded damages based on the value of the whale.
Rationale:
– Precedents have shown that whalers in different areas and hunting different types of
whales must use different methods of killing and then maintaining their prize. Once a
whaler has killed the whale, taking possession of it, and used reasonable means to secure
it, the whale is his, even if intervening forces cause the whale’s body to escape or become
unanchored.
– The custom of using the bomb lance is just as reasonable as harpooning or anchoring.
– Because the industry affects only a small number of people, it is important to honor the
customs of the industry in order for the industry to continue to thrive and for the
community to prosper from the industry. This is a policy rationale
Rule: Custom or precedents may provide that one may have possession of something
even if he has not actually captured it, or ensnared it, or even be in pursuit of it.
Libel- old term for a lawsuit