Ghen was a whale hunter. At the time, the way to hunt
whales was to shoot them with an explosive harpoon. The dead whale sinks
and a few days later floats the surface and ends up washing ashore
somewhere. The hunters go and find the whale and extract blubber to make
In many cases, the whale carcasses were found by people
on the shore who would alert the hunters to their presence for a finder's
The hunters marked the whale with a flag so you'd know
who killed it.
Ghen killed a whale. It resurfaced a few days later and
was found by Ellis. Instead of alerting Ghen, Ellis sold the blubber to
Rich. Ghen sued for replevin.
At the time, it was a well known practice, and Ellis
should have known the "rules."
Replevin is where you sue to get something
somebody stole from you returned.
The Trial Court found for Ghen.
The Trial Court found that it was custom to award the
whale to the ship who killed it.
The Court suggested that if someone were allowed to
step in and take the whale, it would discourage people from hunting
whales, since they could never be sure of retrieving the fruits of their
Gosh, wouldn't it be horrible if people were discouraged
from hunting whales?
Since this was decided in an Admiralty Court, Ghen is
called a libellant, not a plaintiff, and Rich is a respondent,
not a defendant.