The Environment for Litigation: The Sea of Okhotsk Bowhead Fishery and the Collapse of Whaling Dispute Resolution Customs

Abstract

Far from formal legal institutions, the international cast of whalemen created their own rules governing property disputes at sea. The dispute resolution techniques of American whalemen were, in particular, so successful that only four cases were tried in American courts during the nineteenth century. A fifth matter – involving an American and a German ship – was heard before the Supreme Court of Hawaii. What the Hawaiian and American cases share is that all were generated between 1852 and 1867 from disputes in the bowhead fishery of the Sea of Okhotsk. That the small and relatively unimportant grounds, situated between the Siberian coast and the Kamchatka Peninsula and hunted only from 1848 to 1870, should loom so large in the history of whaling property law is, indeed, curious. Scholars have struggled to understand why whalemen hunting bowheads in the Sea of Okhotsk fishery suddenly lost the ability to settle disputes that had effectively served their close knit community for generations.

The answer is not that with whale stocks plummeting and the industry in economic decline, whalemen in the Sea of Okhotsk decided after 1850 to defect from community norms in the belief that the established customs were no longer in their best financial interests. The suggestion that the transition by midcentury from ferocious sperm whales targeted off the coast of South America to the reputedly slow and docile bowheads necessitated different customs which whalemen were slow to adopt is also erroneous. The answer can, instead, be found in the icy waters of the Sea of Okhotsk. A confluence of bowhead biology and the gravitational circulation, tides, river inflow, shallow depth, and ice melt patterns of the Sea of Okhotsk created – even by the standards of an unpredictable industry – a fishery marked by inconsistent seasons of feast or famine which overwhelmed the ability of whalemen to resolve their disputes over contested whales short of the courthouse. Yearly variations in Sea of Okhotsk conditions, the paucity of bowheads in the fishery, and the distance to other desirable hunting grounds also served to disrupt dispute resolution customs. The conditions in the western Arctic bowhead grounds which were hunted in the same time period by many of the same whalemen produced – by way of comparison – relatively consistent returns and did not, as a result, generate disputes that required litigation.

Keywords: whaling, norms