Taber v. Jenny
23 F. Cas. 605 · District Court, D. Massachusetts · 1856
Facts
In the summer of 1852, the ship Hillman and the ship Zone were whaling in the Ochotsk Sea. On July 23, a Hillman boat pursued and killed a whale, then anchored it in 15 fathoms of water with a 60-pound anchor, a double tow-line, and a waif (flagged staff), before going to shore due to fog. A few hours later, a Zone boat, with its captain, found the anchored whale, removed the waif, and took the whale to their ship. The Zone crew cut in the whale, finding irons marked 'H. N. B.' (Hillman, New Bedford), which they took aboard along with the anchor and rope. The Hillman's crew later discovered the Zone had taken their whale, and Captain Cook of the Hillman demanded the whale's bone and oil, which Captain Parker of the Zone refused. The proceeds from the whale were subsequently sold by the respondents, who refused the libellants' demand for the money. The parties had also verbally submitted the controversy to referees, but the resulting award was made by an umpire without hearing the parties, and one referee had prejudged the case.
Issue
Did the Hillman retain ownership of the whale after anchoring it, despite it being subsequently taken by the Zone? Was the arbitration award, made under questionable circumstances, binding on the parties? What is the proper measure of damages for the wrongful conversion of the whale?
Holding
The court held that the Hillman retained ownership of the whale, and the Zone's taking constituted wrongful conversion. The arbitration award was found not to be binding. The libellants were entitled to recover full indemnity for the value of the whale at the time and place it was taken, plus interest.
Rule
When a whale is killed and secured with unequivocal marks of appropriation, such as anchoring it with a waif and irons, it becomes the absolute property of the captors. This ownership is not lost if the whale is found adrift, as the finder only has the rights of a salvor and must act in good faith; wrongful conversion forfeits any claim to salvage. An arbitration award is not binding if one referee had prejudged the case without the knowledge of one party, or if an umpire makes a decision without hearing the parties or their evidence. Damages for wrongful conversion should provide full indemnity to the owner, representing the value of the property at the time and place it was taken, without deductions for speculative risks or unrequested services by the wrongdoer.
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