#885 1800 · New England whaling captains (Nantucket & New Bedford) · Whaling
Whalers wrote different property laws for different whales — no state wrote any of them
the problem
Where no court can reach, a wounded whale is a fortune drifting between rival crews — and every salvage claim is a fight
background
From 1750 to 1870 a whale was a floating factory of oil and bone, and a single animal was worth two to three thousand dollars in court records — three or four times the average American family's annual income. Fleets from a handful of small New England ports hunted them in remote seas where no government could enforce anything, and a whale struck by one ship routinely escaped, sank, or drifted into the hands of another. As Melville put it, 'the most vexatious and violent disputes would often arise' without law.
The obvious fixes were unavailable: there was no international statute, and no trade association ever decreed the rules — the only formal whaling code on record was a Dutch edict of 1695 that left no trace. Yet the captains formed a close-knit world: a few intermarried home ports ('more like a large family than a civic community'), ritual meetings between ships at sea, shared layover harbours. Gossip and reputation were available sanctions; the question was what rules those sanctions should enforce.
what everyone would do
Adopt one universal rule of capture — possession decides, or the killer owns, or the first pursuer owns — and enforce it by courts or a trade code. Each fails: possession-decides rewards vultures who hang back and freeload on the hunt; killer-owns is ambiguous and destroys the incentive to salvage lost carcasses; first-pursuer invites premature boat-launching and can lock a whale to the crew least able to take it. And a universal rule must fit every whale when the economics differ by species.
what they saw
A property rule is a cost calculation, not a moral choice: what it must reward depends on the prey's biology — how it fights, whether it sinks, whether it schools. Change the whale and the efficient law changes with it.
the move
The norms that emerged were a menu, not a code, and each dish was matched to its prey. British right-whalers off Greenland ran fast-fish, loose-fish: a whale is yours while your line holds it, and the moment it breaks loose it belongs to anyone. American sperm-whalers switched to iron-holds-the-whale: the first harpoon in the body confers the claim, line or no line, so long as the claimant stays in fresh pursuit; a waif — a flagged pole planted in a carcass — held the whale while the crew chased the rest of the school. In the Galapagos, a drogue-fettered whale was split fifty-fifty between the ship that fettered and the ship that finally took it; on Cape Cod, a bomb-lanced finback that sank and later washed ashore belonged to its killer, the beach-finder receiving a small salvage.
why it works
Each norm matched a prey's biology to the incentive the hunt needed. Right whales are slow and mild, a fastened whale rarely escapes, so the bright-line fast-fish rule cheaply rewarded the first harpooner. Sperm whales are faster, dive deeper, fight viciously and swim in schools: lines snap, so ownership had to survive the line — iron-holds-the-whale plus fresh pursuit — and because a school must be slaughtered in haste, the waif let one crew kill many whales and collect them later. Deadweight losses were minimized because every indispensable job — first strike, final capture, beach-finding — got a paid part; transaction costs were minimized because the rules were bright-line wherever the biology allowed. Enforcement cost nothing: a close-knit corps of captains who met at sea and intermarried at home policed one another with gossip and the threat of exclusion.
the payoff
A century of high-seas disputes settled without one American lawsuit — when courts finally ruled, they deferred to the whalers' own rules
where it breaks
The norms stood on close-knittedness: as the industry declined and crews stopped expecting to meet again, disputes migrated into courts — all five American high-seas cases arose between 1852 and 1862, when the rot had begun. Bright lines misfire where biology varies within a category, and the rule-versus-standard trade-off reappears (the Galapagos fifty-fifty against Cape Cod's 'reasonable salvage'). And the system governs capture, not conservation: nothing in it restrained the depletion of the stocks that ended the industry.
what came after
In the reported Anglo-American cases over contested whales, judges invariably held the whalers' usages reasonable and deferred to them — the norms 'did not mimic law; they created law.' Ghen v. Rich (1881), the Cape Cod finback case, is still taught in property courses, its decree $71.05, contested, as the judge noted, 'more for the purpose of having it settled than for the amount involved.' Ellickson's 1989 analysis made the fishery the canonical exhibit of order without law.
references
- [1]A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling IndustryJournal of Law, Economics, & Organization, 1989doi.org
- [2]Ghen v. Rich, 8 F. 159 (D. Mass. 1881)U.S. District Court, District of Massachusetts, 1881sites.oxy.edu