The Law of Property in Animals, Newfoundland-Style

• Author: Bruce Ziff
• Pages: 9-33

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The Law of Property in Animals,

NewfoundlandStyle

BruceZiff

Twomenofsomeothersealerscrewfrozentodeathwerealwaystwomenlessin

thepowerofarivalshipEvensoslightafactorwassomethinginthe

incrediblytenserivalryofthesealhuntAzariahStabbwasnothardhearted

ButifitwereGodswillthatanyrivalofhisshouldlosetwomenwhowasheto

questiontheinscrutablewaysofProvidence.

Introduction

IinGreenBayjustothenortherncoastofNewfound

land. A schooner called the Brothers lay jammed in the ice some distance

from an ice pan containing a large number of seal pelts that had been gath

eredbyitscrewseveraldaysearlierAstheoesmigratedthispanmoved

within close proximit y to a second schooner, the Barbara Its crew hauled and

stowed the pelts. Given the prevailing weather and sailing conditions, had

the Barbara’s crew not done so, this catch might well have been lost for good.

Not long after the ships returned to port, a lawsuit sparked by these events

was launched. In essence, the Newfoundland Supreme Court was called

upon to determine whether the second schooner was entitled to claim the

peltsifthersthadbeenrenderedunabletodoso

The ruling, fou nd in CliftvKane, is a central authority among a cluster of

Newfoundlandcasesheardoveraboutatwentysixyearspanto

ﾅﾄBruceZi

that addressed that question. These decision s engage fundamental property

law principles and values, and are as rich and edifying as any of the clas

sic authorities on possession in law. Despite this, they have languished in

obscurity for well over a century. My aim in the chapter is to bring them

tothelightofdayandtoexploresomewellknowndoctrinesandtheways

inwhichtheseruleswereadaptedtolocalcircumstancesMorespecically

this paper examines how the generic principles governing the laws of cap

tureandrstoccupancywereshapedbythecourtstomeettheneedsofthe

Newfoundla nd sealers.

A Brief History of the Seal “Fishery”

Ta long history. Centuries ago, the indigenous peoples of

presentdayNewfoundlandcapturedsealstheskinsandfatwereusedfor

sustenance, clothing, heat, and light. European interest in the seal stocks

beganinthelatesixteenthcenturyandacommercialsheryundertakenby

EnglishandFrenchselersisknowntohaveexistedsincethebeginningof

the eighteenth century. The skins were used for such t hings as shoes, boots,

harnesses, and portmanteaus. (There is no indication on the early literature

that pelts were used for fur coats.) The fat was rendered into oil and was

used in places such as Great Britain for lighting in m ines and lighthouses, for

SS Nimrod, one of the ships i nvolved in the case of DoylevBartle