Two whaling ships, the Caledonia from Borrowstounness and the Priscilla from Newcastle, were hunting in the Davis Strait in May 1789. First, the Caledonia asked for help and the Priscilla sent boats; later, the Caledonia promised it would return the favor when the Priscilla next hooked a whale. Two days later the Priscilla’s crew struck a big whale. The whale dived for a long time and popped up far away. It had the Priscilla’s harpoon in its back, blowing hard like a hurt animal. Boats from the Caledonia were nearby. One of their mates, Robertson, put in another harpoon. Soon after, the line from the Priscilla’s boat went slack and “came home,” which means the fish might no longer have been attached to the Priscilla’s rope. The whale later took more iron from the Priscilla and even from another ship, the Kitty, and then it was finally killed and cut up by the Caledonia’s crew.
The two ships then argued about who owned the whale. The Priscilla said, “We struck first and were still fast when you came,” and claimed the Caledonia had only promised to assist and should not have taken the prize. They also said the Priscilla’s line looked like it had been cut with a sharp tool near a splice, hinting that someone from the Caledonia might have done it on purpose. The Caledonia replied, “When we reached the whale, it was a loose fish,” which in whaling meant the animal had broken free from the first line. Under the trade’s custom, if a whale is loose and you strike it and stay fast until it dies, you own it. They added that the whale had surfaced so far away that the Priscilla’s short line could not still have held it, and lines are often cut by ice, rocks, or foul ground without anyone cheating.
The legal path was long and confusing. First, the Judge Admiral in Scotland agreed with the Caledonia and said the whale was a “loose fish.” Then the Priscilla appealed by a reduction and declarator, and the Lord Ordinary in November 1792 ruled for the Priscilla, with the Court of Session adhering. That court leaned on a simple idea: if you first seize a wild animal and keep up the chase with hope of recovery, you still have a right, and the promise to assist should stop the Caledonia from grabbing the fish. Witnesses also attacked Robertson’s credibility because of an earlier, similar quarrel.
The case then went to the House of Lords. There, Lord Thurlow stated the core rule plainly: in whale fishing it is settled that if a whale is struck and later gets loose, the property goes to the next striker who keeps fast until the whale is killed. The Lords treated the dispute as a question of fact: was the fish still fast to the Priscilla when the Caledonia struck? After reviewing the evidence, they decided the proof that the whale was loose when Caledonia’s boat struck “preponderated.” Because the Caledonia then stayed fast through the kill, the whale belonged to the Caledonia.
The House of Lords on March 3, 1794, reversed the Court of Session, restored the Judge Admiral’s view, and repelled the reasons of reduction. In everyday words: the highest court said the “loose fish” rule controls, the whale had indeed shaken free of the Priscilla before the Caledonia struck, and so the Caledonia won the whale, fair and square.
