8 F. 159 (Mass. 1881).

One-Sentence Takeaway: A court can consider an industry’s customs and practices in determining the issue regarding ownership of property.

Facts:  Plaintiff killed a whale at sea and left it at sea with his identifying bomb-lace in the whale.  According to the whaling industry’s customs and practices in Cape Cod, the person who killed the whale using a specially marked bomb lace owned it and if the whale were to be found on the beach by another individual, that individual would notify the person who killed the whale and would receive a finder’s fee.

A person named Ellis found the whale killed by Plaintiff and, although he knew or should have known the whale industry’s customs and practices, Ellis sold the whale to Rich (Defendant) who shipped off the blubber and tried out the oil.

Plaintiff sued Defendant for libel to recover the value of the whale.

Holding: The Court held that the custom and usage in the fin-back whaling industry trumped the common law rule regarding ownership of the whale.  Under the applicable custom, the whales were the property of the one whose lance was found in them and that rule governed as to the right to a whale found washed ashore.

The court reasoned that there were compelling reasons for the court to follow the well-accepted customs and practices of the industry:

“Unless it is sustained, 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. It gives reasonable salvage for securing or reporting the property. That the rule works well in practice is shown by the extent of the industry which has grown up under it, and the general acquiescence of a whole community interested to dispute it. It is by means clear that without regard to usage the common law would not reach the same result.”  Id. at 162.

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