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Blog Post  Fast-Fish and Loose-Fish and the Property Law of Whaling

On January 3, 1841, Herman Melville set sail on the whaling vessel Acushnet from Fairhaven, Massachusetts.
12/23/2015
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Melville’s time at sea on this voyage inspired and informed his masterpiece, Moby-Dick. The breadth and depth of this book marks it as one of the great works of American Literature. Moby-Dick will be read in its entirety at the 20th Anniversary Moby-Dick Marathon at the New Bedford Whaling Museum on January 9 and 10, 2016.

Chapter 89 of Moby-Dick, “Fast-Fish and Loose-Fish” deals with the resolution of property disputes over ownership of whales by Anglo-American whalemen in the eighteenth and nineteenth century. In a brief chapter, Melville speaks of the lack of any written whaling law other than a formal Dutch code enacted in 1695. He says, “American fishermen have been their own legislators and lawyers in this matter. They have provided a system. . . [of] laws [that] might be engraven on a Queen Anne’s farthing, or the barb of a harpoon, and worn round the neck, so small are they.

  1. A Fast-Fish belongs to the party fast to it.
  2. A Loose-Fish is fair game for anybody who can soonest catch it.”

In a 2010 article in Ecology Law Quarterly, “Fast-Fish, Loose-Fish: How Whalemen, Lawyers and Judges Created the British Property Law of Whaling,” Robert Deal expounds upon Melville’s thesis, examining dispute resolution on the open sea.

And what of the law related to whaling today? In 1946, the International Convention for the Regulation of Whaling served as the legal framework for establishing the International Whaling Commission (IWC) , a global body charged with the conservation of whales and the management of whaling. “Uncertainty over whale numbers led to the introduction of a ‘moratorium’ on commercial whaling in 1986.  This remains in place although the Commission continues to set catch limits for aboriginal subsistence whaling.” The IWC is a voluntary organization, not backed up by treaty. Some countries, such as Japan and Norway, have not been honoring the ban on whaling.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) is an international treaty that provides protection for wild animal and plant species, including whales, in international trade. Commercial trade is prohibited for all the great whales in this treaty.

The United Nations Convention on the Law of the Sea (1982) establishes a global framework for the conservation of marine resources. Articles 65 and Article 120 deal specifically with marine mammals.

While attitudes toward whaling have changed considerably since the nineteenth century and attempts at international consensus have had some success in protecting whales, Melville would not find unfamiliar the situation in which, for some, the law remains “a loose-fish is fair game to anybody who can soonest catch it.”

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