49 Pages Posted: 22 Dec 2009
Date Written: December 22, 2009
Anglo-American whalemen in the eighteenth and nineteenth centuries used customs largely of their own creation to resolve disputes at sea over contested whales. These customs were remarkably effective: litigation was rare and violence even rarer. Legal scholars such as Professor Robert Ellickson have correctly pointed to these customs as an example of how close-knit communities settle disputes without recourse to formal legal institutions or even knowledge of the applicable law. However, Ellickson’s belief that these whaling customs were universally followed at sea and were in turn adopted by courts is not entirely accurate. While courts often deferred, in part, to whaling practices, judges and lawyers were also active participants in creating the property law of whaling.
The British whaling cases of the late eighteenth and early nineteenth centuries were part of a discussion dating back to Justinian’s Digest about the actions necessary to secure possession and ownership of ferae naturae. British courts at the turn of the nineteenth century did much to advance one whaling custom over a competing practice: The norm of ‘fast-fish, loose-fish’ was accepted in several late eighteenth century cases as the universal custom of whaling, while the competing practice of ‘iron holds the whale’ was ignored by British courts and was, thereafter, abandoned by whalemen in the Greenland fishery. However, in the 1820s, British lawyers and judges applied the emerging action of interference with trade to whaling disputes, thereby reintroducing aspects of the previously rejected custom of iron holds the whale.
Suggested Citation: Suggested Citation
Deal, Robert, Fast-Fish, Loose-Fish: How Whalemen, Lawyers and Judges Created the British Property Law of Whaling (December 22, 2009). Available at SSRN: https://ssrn.com/abstract=1527091 or http://dx.doi.org/10.2139/ssrn.1527091