WHALES, SEALS. 25 



or taker, if there be but one such. ... If it were proved that 

 one vessel had become fully possessed of a whale and had 

 afterwards lost or left it with a reasonable hope of recovery, it 

 would seem unreasonable that the finder should acquire the 

 title merely because he is able to cut in the animal before it 

 is reclaimed. And, on the other hand, it would be difficult 

 to admit that the mere presence of an iron should be full evi- 

 dence of property, no matter when or under what circum- 

 stances it may have been afifixed. But the usage being di- 

 visible in its nature, it seems to me that, so far as it relates to 

 the conduct of the men of dififerent vessels in actual pursuit 

 of a whale, and prescribes that he who first strikes it so 

 effectually that the iron remains fast should have the better 

 right, the pursuit still continuing, it is reasonable, though 

 merely conventional, and ought to be upheld." ^* 



In Ghen v. Rich ®^ it is said : "It is by no means clear that 

 Avithout regard to usage the common law would not reach 

 the same results. That seems to be the effect of the decisions 

 in Taber v. Jenny "* and Bartlett v. Budd.^'' If the fisherman 

 does all that is possible to do to make the animal his own, that 

 would seem to be sufficient." 



The cases referred to hold that if a whale is killed, anchored 

 and left with marks of appropriation, it is by law and custom 

 the property of the captors even if it should drift to another 

 place. 



In Ghen v. Rich, supra, it was shown that the whales when 

 shot with bomb-lances sink at once to the bottom and rise in 

 from one to three days, the finder claiming salvage. It was 

 held that a custom that each boat's crew had its peculiar mark 

 or device on its lances, by which it could be known who had 

 killed the whale and was thus its owner — was a reasonable 

 and valid one. It was also held that the measure of damages 

 for the conversion was the market value of the oil obtained 



" Swift V. Gifford, 2 Low (U. S.), no. 



"8 Fed. Rep. iS9- " i Sprague (U. S.) 3iS- 



" I Low (U. S.) 223. 



