Page:Federal Reporter, 1st Series, Volume 8.djvu/175

GHBN ». EIOH, 161 Bome distance for the night. The next morning the boats of the respondent's ship found the whale adrift, the anchor not holding, the cable coiled round the body, and no waif or irons attached to it. Judge Lowell held that, as the libellants had killed and taken aotual possession of the whale, the ownership vested in them. Inhis opin- ion the learned judge says : "A whale, heing ferœ naturœ, does nothecome property until a firm posses- 8ion has berai established by the taker. But when such possession has become firm and complete, the right of property is clear, and ha^ all the characteris- tics of property." He doubted whether a usage set up but notproved by the respond- ents, that a whale found adrift in the ocean is the property of the finder, unless the first taker should appear and claim it before it is eut in, would be valid, and remarked that "there -vrould be great diffi- culty in upholding a custom that should take the property of A. and give it to B., under so very short and unoertain a substitute for the statute of limitations, and one so open to fraud and deceit." Both the cases cited were decided without reference to usage, upon the ground that the property had been acquired by the first taker by actual possession and appropriation. In Swift V. Gifford, 2 Low. 110, Judge Lowell decided that a cus- tom among whalemen in the Aretic seas, that the irbn, holds the whale, was reasonable and valid. In that case a boat's crew from the respondent's ship pursued and struck a whale in the Aretic ocean, an,d the harpoon and the line attached to it remained in the Tj^liale, but did not remain fast to the beat. A boat's crew from the libel- lant' s ship continued the pursuit and captured the whale, and the master of the respondent's ship claimed it on the spot. It was held by the learned judge that the whale belonged to the respondents. it was said by Judge Sprague, in Bourne v. Ashley, an unprinted case referred to by Judge Lowell in Swift v. Gifford, that the usage for the first iron, whether attached to the boat or not, to hold the whale was fully established; and he added that, although local usages of a par- tieular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which embraced an entire business, and had been concurred in for a long time by every one engaged in the trade. In Swift V. Gifford, Judge Lowell also said : " The rule of law invoked in this case is one of very limited application. The whale flshery is the only branch of industry of any Importance in which v.8,no.3— 11