Ghen v. Rich United States District Court for the District of Massachusetts, 1881. Facts: Fin-back whales, as opposed to other whales, sink when killed, then float back to the surface one to three days later and are often located far from where they were killed. The custom of the Cape Cod area at the time of this case was such that a person who finds the body of a finback whale sends word to Provincetown, and the whaler sends someone to the whale to remove the blubber. A small fee is granted to the finder of the whale. Ghen (plaintiff) killed a fin-back whale for commercial purposes. Several days later, Ellis found the whale and, contrary to custom, sold it at auction to Rich (defendant), who harvested the blubber and oil from the whale carcass. Ghen sued Rich seeking to recover the value of the whale. Issue: Can taking “possession” of an animal ferae naturae in accordance with a local industry custom be sufficient to grant the “possessor” a property right over the animal? Holding: Yes, a person establishes a property right over whales when he takes possession of the carcass and takes practical steps to secure it, in accordance with local custom. Judgement of $71.05 for P. Reasoning: In Taber v. Jenny, 1 Sprague 315 (1856), the court held that killing and anchoring a whale with appropriate indicia of appropriation were enough to establish a possessory right to that whale. In Bartlett v. Budd, 1 Low. 223 (1868), a similar possessory right was established even though the whale had drifted clear of its anchorage. And in Swift v. Gifford, a custom under which the first party to harpoon a whale claims ownership of it was held to be dispositive even if the harpoon failed to remain attached to the boat. Also, the industry would suffer if whalers could so easily lose the fruits of their efforts by allowing another party to lay claim to the whales they took the effort to hunt down. Thus, the custom compelling the finder of a dead whale to contact the original whaler established the whaler’s property claim in that whale, and the blubber and oil therein.