Ghen v. Rich

Following is the case brief for Ghen v. Rich, 8 F. 159 (1881)

Case Summary of Ghen v. Rich:

  • Ghen, a fisherman, killed a whale in Massachusetts Bay.  Ellis found the whale several days later.  Rather than follow custom and bring the whale to town to give it to the fisherman and collect a finder’s fee, Ellis sold the whale to Rich.
  • When Ghen learned of Ellis’s actions, he sued Rich to obtain money for the value of the whale.
  • The District Court ruled in favor of Ghen.
  • The court determined that a person should be allowed to enjoy the fruits of his labor.  The whale-hunting industry custom gave Ghen ownership over the whale because he killed it.  That custom should be followed.  To do otherwise would destroy the whale-hunting industry because no fisherman would spend resources to kill a whale that could be appropriated by a person who finds it by chance.

Ghen v. Rich Case Brief

Statement of the Facts:

  • Fin-back whale hunting custom in Massachusetts.

Fin-back whale frequented Massachusetts Bay in the springtime.  Fisherman from Provincetown would pursue the whales in open boats and shoot them with bomb-lances, which were designed to uniquely identify the fisherman using it.  When a whale was killed, it would initially sink to the bottom of the bay, but it would then float to the surface after one to three days.  The local custom was that anyone who found a whale on the water, or washed up on shore, would bring it to Provincetown to be claimed by the fisherman who killed it.  The finder would then receive a finder’s fee for his services.

  • A third party, Ellis, did not follow custom in this case.

In this case, Ghen killed a whale with his bomb-lance.  Three days later, Ellis found the whale on the shore.  Rather than bring it to Provincetown, however, Ellis sold the whale to Rich, who obtained oil and other byproducts from the whale.  Several days later, Ghen found out about the whale being sold and went to claim it.  Ellis and Rich claimed that they did not know that Ghen had killed the whale.  However, they should have known because it was killed with a bomb-lance.

Procedural History:

Ghen instituted an action in the District Court for the District of Massachusetts against Rich for the value of the fin-back whale.

Issue and Holding:

Does local custom prevail in determining the ownership of a wild animal?  Yes.


Judgment for Ghen in the amount of $71.05.

Rule of Law or Legal Principle Applied:

A person should be allowed to benefit from the fruits of his labor.  Thus, local custom may be allowed to determine possession over a wild animal, even if the rightful owner did not, or could not, immediately take physical possession of the animal.


If a fisherman does all that is possible to make an animal his own, that should be sufficient to give him ownership of the animal.  That should be true even if the fisherman does not have immediate physical possession of the animal.  The custom of the small whale-hunting industry — where the fisherman who kills the whale ultimately takes ownership, and the finder receives a finder’s fee — supports that result.

To hold otherwise would put an end to the whale-hunting industry.  A fisherman would have no incentive to use all his resources to kill a whale when any chance finder of the whale could claim ownership.  Accordingly, the custom of the industry dictates who can rightfully claim ownership of the animal in question.  Other cases involving whaling support that outcome.


Ghen v. Rich is a well-known property law case used to demonstrate that custom can determine ownership or possession under the common law.  The old adage that “possession is nine-tenths of the law” may lead one to believe that Ellis should have ownership of the whale because he took physical possession of it when he found it.  However, the judge in Ghen v. Rich was correct to recognize the effort the fisherman took in killing the whale in the first place, which was the whole reason behind the industry custom.

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