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The converse of the proposition is that a whale which is found adrift, though with an iron in it, belongs to the finder, if it can be cut in before demand made. The usage of the English and Scotch whalemen in the Northern fishery, as shown by the cases, is, that the iron holds the whale only while the line remains fast to the boat; and the result is, that every loose whale, dead or alive, belongs to the finder or taker, if there be but one such.
The validity of the usage is denied by the libellants, as overturning a plain and well-settled rule of property. The cases cited in the argument prove a growing disposition on the part of the courts to reject local usages when they tend to control or vary an explicit contract or a fixed rule of law. Thus Story, J., in The Reeside, 2 Sumner, 569, says, “I own myself no friend to the almost indiscriminate habit of late years of setting up particular usages or customs in almost all kinds of business and trade, to control, vary, or annul the general liabilities of parties under the common law, as well as the commercial law. It has long appeared to me that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to particular parties, and liable to great misunderstandings and misinterpretations and abuses, to outweigh the well-known and well-settled principles of law." Many similar remarks of eminent judges might be cited. But in the application of these general views it will be found difficult to ascertain what is considered a principle of law that cannot be interfered with. Principles of law differ in their importance as well as in their origin; and while some of them represent great rules of policy, and are beyond the reach of convention, others may be changed by parties who choose to contract upon a different footing; and some of them may be varied by usage, which, if general and long established, is equivalent to a contract. Thus in Wigglesworth v. Dallison, Doug. 201, which Mr. Smith has selected as a leading case, the law gave the crops of an outgoing tenant to his landlord ; but the custom which made them the property of the tenant was held to be valid.
The rule of law invoked in this case is one of very limited application. The whale-fishery is the only branch of industry of any importance in which it is likely to be much used; and if a usage is found to prevail generally in that business, it will not be open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception. Then the application of the rule of law itself is very difficult, and the necessity for greater precision is apparent. Suppose two or three boats from different ships make fast to a whale, how is it to be decided which was the first to kill it? Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dangerous quarrels in the division of their spoils. In Fennings v. Grenville, 1 Taunt. 241, evidence was offered of a custom in the Southern fishery for the contending ships to divide the whale equally between them. This custom, which differed entirely from that prevailing in the North Atlantic, was yet thought to be not unreasonable. Chambre, J., said, “ I remember the first case on the usage which was had before Lord Mansfield, who was clear that every person was bound by it, and who said that were it not for such a custom there would be a sort of warfare perpetually subsisting between the adventurers.”
The case went off upon a question of pleading, and the custom was not passed upon; but it is clear that it was thought to be valid. In the other cases cited, the usage first above mentioned was found to be valid. In the case of Bartlett v. Budd, 1 Lowell, 223, the respondents claimed title to a whale by reason of having found it, though it had been not only killed, but carefully anchored, by the libellants. I there intimated a doubt of the reasonableness of a usage in favor of the larceny of a whale under such circumstances, and I still think that some parts of the asserted usage could hardly be maintained. If it were proved that one vessel had become fully possessed of a whale, and had after. wards 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 evidence of property, no matter when or under what circumstances it may have been affixed. But the usage being divisible in its nature, it seems to me that, so far as it relates to the conduct of the men of different 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 Bourne v. Ashley, determined in June, 1863, but not printed, Judge Sprague, whose experience in this class of cases was very great, found the custom to be established, and decided the cause in favor of the libellants, because they owned the first iron, though the whale was killed by the crew of the other vessel, or by those of both together. Mr. Stetson, of counsel in that case, has kindly furnished me with a note of the opinion taken down by him at the time, and I have carefully compared it with the pleadings and depositions on file, and am satisfied that the precise point was in judgment. The learned judge is reported to have said that the usage for the first iron, whether attached to the boat or not, to hold the whale, was fully established, and that one witness carried it back to the year 1800. He added, that although local usages of a particular 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 that trade.
In this case the parties all understood the custom, and the libellants' master yielded the whale in conformity to it. If the pursuit of the Rainbow had been clearly understood in the beginning, no doubt the other vessel would not have taken the trouble to join in it, and the usage would have had its appropriate and beneficial effect. In the actual circumstances, it is a hard case for the libellants; but as they have not sustained their title, I must dismiss their cause, and, in consideration of the point being an old one in this court, with costs.
Libel dismissed, with costs.
Wilkins, LEG. Ang.-Sax. 305. – Of Wreck of the Sea in the time of Henry I. and King Stephen. In these days (i. e., A. D. 1139, in the fourth year of King Stephen), in a very great storm it happened that a certain ship loaded with a variety of goods from Rumenel, an estate of the Archbishop of Canterbury, was cast in a broken condition on land of the Church De Bello in the lathe of Shepway, a part of Wye (the men barely escaping). But it is to be known that this is to be observed for law from ancient times on the sea-coasts, that when a ship is broken by the waves, if those who escape shall not have repaired hier, within the required term and time, the ship and whatever shall have come to shore shall belong without suit to that land and be held Wreck. But King Henry aforesaid, disapproving greatly this custom in his time, throughout the extent of his realm made an edict that if but one person should have escaped alive from the wrecked vessel, he should have all the goods. But a new King came in and a new law; For when he was dead, the chief lords of the realm, having overthrown the late edict, adopted for themselves the practice which had in ancient times been observed. Whence it happened that the men of the lathe of Shepway, according to the customs of the sea and the royal dignities, took by force the aforesaid Wreck of the Church De Bello. - From the Chronicle of the Monastery De Bello,
LETTER OF Hen. II. (1174), 1 Rym. Fed. 36. - We will and firmly order for ourselves and our heirs that whenever it may happen in the future that any ship is cast away within our realm either on the coast of England, or on the coast of Picardy, or on the coast of the Island of Oleron, or on the coast of Gascony, and from the ship so cast away any man shall escape alive, and shall come to land, all the goods and chattels in that ship contained shall continue and be the property of those whose they were before, and shall not be lost to them under the name of Wreck. And if from a ship so cast away no man escapes alive, but it happens that some other [sic] beast escapes alive, or is found alive in that ship, then those goods and chattels, by the hands of the bailiffs of ourselves or of our heirs, or by the hands of the bailiffs of those on whose land the ship shall have been cast away, shall be delivered to four good men, to be kept for the term of three months, so that if those whose those chattels were shall within that term come to demand those chattels and can prove that the chattels are theirs, then they shall be delivered them. But if within the said term no one shall come to demand those chattels, then they shall belong, under the name of Wreck, to us and our heirs or to such other person as may have the right of having Wreck. And if from that ship so cast away no man or other beast shall escape alive, as aforesaid, then the goods and chattels in that ship contained shall belong, by the name of Wreck, to us and our heirs, or to such other person where the ship was cast away, as shall have the privilege of having Wreck, as aforesaid.
BRACT. LIB. 3, c. 3, fol. 120. -- And it should be known what can be called wreck, that is, derelict, so that if anything (for the sake of lightening a ship) shall have been thrown from the ship by any one, without the intention of keeping it, or of getting it back, that may properly be called wreck, since the thing thrown away may be held for derelict. And whether it may be held for derelict may appear by presumptions, as if a book shall have been thrown away, whether it is found shut or opened, when it could conveniently and well be shut; and so of like things. Again, it may more properly be called wreck, if a ship is broken up, and from it no one has escaped alive, and especially if the owner of the things has been drowned ; and whatever thence comes to land from it shall belong to our Lord the King, nor can any other person claim or have anything of it against our Lord the King, although he possesses an estate near the sea-shore, unless he enjoys a special privilege to have wreck. And that things of this sort ought to be called wreck is true, unless it be that the true owner, coming from elsewhere, by certain proofs and signs can show that things are his, as if a dog is found alive, and it can be shown that he is the owner of the dog, it is presumed from this that he is the owner of the dog and of the goods. And in the same manner if certain marks have been placed on the merchandise and other things. And what has been said will have effect if the things are found on the sea-shore, and the same if near the shore or farther off in the sea ; provided, nevertheless, it can in truth be shown that they are to be referred (essent applicandæ] to the shore. But if they are found in the sea farther off from the shore, so that it cannot be proved to what land or district they are to be referred, then whatever shall have been so found shall belong to the finder, because it may be said to be no man's goods (nullius in bonis), and is called by the sailors lagan, and is therefore given to the finder, because there is no one who can have any privilege in it, the King no more than a private person, on account of the uncertain result of the matter. But as to a sturgeon, the rule is that the King shall have the whole of it, by reason of his prerogative; but of a whale, it is enough, according to some, if the King has its head, and the Queen its tail.
St. 3 Edw. I. c. 4. — Concerning Wrecks of the sea, it is agreed that where a man, a dog, or a cat escape quick out of the ship, that such Ship nor Barge, nor any thing within them, shall be adjudged Wreck ; (2) but the goods shall be saved and kept by view of the sheriff, coroner, or the King's bailiff, and delivered into the hands of such as are of the town, where the goods were found; (3) so that if any sue for those goods, and after prove that they were his, or perished in his keeping, within a year and a day, they shall be restored to him without delay; and if not, they shall remain to the King, and be seized by the sheriffs, coroners, and bailiffs, and shall be delivered to them of the town, which shall answer before the Justices of the Wreck belonging to the King. (4) And where Wreck belongeth to another than to the King, he shall have it in like manner. (5) And he that otherwise doth, and thereof be attainted, shall be awarded to prison, and make fine at the King's will, and shall yield damages also. (6) And if a Bailiff do it, and it be disallowed by the Lord, and the Lord will not pretend any title thereunto, the bailiff shall answer, if he have whereof; and if he have not whereof, the Lord shall deliver his bailiff's body to the King.
St. 17 Edw. II. c. 11. — Also he [the King] has wreck of the sea throughout the whole realm, whales and sturgeons taken in the sea or elsewhere within the realm, certain places privileged by the Kings excepted.
St. 27 Edw. III. c. 13. — Item, we will and grant, That if any merchant, privy or stranger, be robbed of his goods upon the sea, and the goods so robbed come into any parts within our realm and lands, and he will sue for to recover the said goods, he shall be received to prove the said goods to be his own by his marks, or by his chart or cocket, or by good and lawful merchants, privy or strangers. (2) And by such proofs the same goods shall be delivered to the merchants, without making other suit at the common law. (3) And in case that any ships going out of the said realm and lands, or coming to the same, by tempest or other misfortune, break upon the sea-banks, and the goods come to the land, which may not be said wreck, they shall be presently without fraud or evil device delivered to the merchants to whom the goods be, or to their servants, by such proof as before is said, paying to them that have saved and kept the same, convenient for their travel ; that is to say, by the discretion of the sheriffs and bailiffs, or other our ministers in places guildable, where other lords have no franchise, and by the advice and assent of four or six of the best or most sufficient discreet men of the country (4) and if that be within the franchise of other lords, then it shall be done by the stewards and bailiff, or wardens of the same franchise, and by the advice of four or six discreet men of the country, as afore is said, without any delay.
1 of the sturgeon it is the rule that the king shall have the whole of it, on account of the royal privilege. But of the whale it is enough if the king has the head, and the queen the tail. — Fleta, lib. i. cc. 45, 46.