Melville’s Moby Dick, which fell flat out of the presses and was out of print in 1891 when he died, was thankfully revived 70 years later in the 1920s for it gave us access to not only one of the best books ever written, but a legal theory that will stand the test of time, that is, that possession is the whole of the law. How can this be so? By virtue of two simple principles:
I. A Fast-Fish belongs to the party fast to it.
II. A Loose-Fish is fair game for anybody who can soonest catch it.
The story goes that a boat of whalers had harpooned a whale but capsized, and watched the whale escape with their harpoons stuck in it. Another group of whalers then came along and killed and seized the whale. To whom did the whale, the capsized boat, and the harpoons belong?
The boat belonged to the whalers who were on it and capsized, for they had held fast to it and let go only to save their lives. No one else had subsequently held fast to the boat, unless it can be said that the ocean held fast to the boat.
The harpoons held fast in the whale. When first struck, the whale was loose-fish, for it had not been caught. So at that time the proper owner of the harpoons was the whale. Then the second group of whalers caught the whale, and so the whale held fast to them. It followed, then, that the harpoons and the whale belonged to the second group of whalers, for the lot of it held fast to them.
Now more than 100 years have passed since Moby Dick and I cannot but be astonished at its applicability in our times. Let us take the a common tort in which a pedestrian is injured in a car accident. Now the pedestrian is loose-fish. Like the whale he is free and travels the oceans of sidewalks and roads. When the driver strikes the pedestrian, the pedestrian becomes fast-fish, having been harpooned by the driver. And so the driver is liable.
Suppose our case is more complicated. The driver loses control on a patch of slick ice which the municipality had failed to salt. Then the driver becomes loose-fish on the ice. The ice is fast-fish to the municipality, and so in turn the driver and pedestrian are fast-fish to the municipality. Thus the municipality is liable.
The principle is even more intuitive in contract law. A promise is made by a vendor to deliver a product. The product is defective, so it remains fast-fish to the vendor. The product is lost in shipping, so it is fast-fish to whoever arranged the shipping. The product spoils in storage, so it is fast-fish to the buyer. The product is destroyed by lightning, well, then it is loose-fish!
In family law spouses are fast-fish. Upon divorce the rope remains naturally tethered. Children, too, are fast-fish. Is it any wonder that families, which remain fast-fish to each other in nature, must in law support each other by child-support and spousal-support?
How far afield does the doctrine extend? In corporate law the business is fast-fish to the directors who manipulate it. Minority shareholders, being loose-fish, thus seek the oppression remedy from those who do the harpooning. And nothing could be clearer in securities law when insiders have the fast-fish of material non-public information, while the public are mere loose-fish. Thus the insider must act with care and the public may travel as they will; but they cannot be punished by those who claim the fast-fish.
And is not the battle of beneficiaries over their dead parent’s property nothing but a question of who is fast-fish and loose-fish? So the child who takes care of the parent in their dying years claims the child is fast-fish to the parent; and the spouse who marries into the family late claims he is fast-fish, while the child disputes, saying the spouse is mere loose-fish? And doesn’t it make sense that a will, in many jurisdictions, is deprecated upon marriage, for the creation of a new family creates new fast-fish?
We need not exhaust the cases to prove the principle. Rather be guided by the great seer:
What are the Rights of Man and the Liberties of the World but Loose-Fish? What all men’s minds and opinions but Loose-Fish? What is the principle of religious belief in them but a Loose-Fish? What to the ostentatious smuggling verbalists are the thoughts of thinkers but Loose-Fish? What is the great globe itself but a Loose-Fish? And what are you, reader, but a Loose-Fish and a Fast-Fish, too?
-Moby Dick, Herman Melville, 1851
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