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| Finders Keepers |
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| Introduction |
| The purpose of this article is to provide at least a basic sketch of the legal position of a person who, walking on the beach or diving off the coast, comes across something of value, by chance. This article is not intended to be an authoritative guide to the law but rather to provide at least a basic outline of the law, so that those lucky enough to find themselves in such a position may be able to know of the need to take specialist advice. |
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| Beachcombing |
| A beachcomber is someone who takes an active interest in things of value washed up by the tide. A beachcomber should be distinguished from “prospectors”, those who dig, or use metal locators to search for valuable items, and who will be considered further below. |
| A beachcomber may simply be collecting driftwood, or old tin cans for recycling money, or picking pebbles from the beach. Generally speaking such actions cause no offence, although beachcombers should be aware of the possibility of both local bye-laws and custom and practice. An example of this is that in 2005 the local council of Clevedon beach announced a policy of prosecuting anyone removing pebbles, as they provide a habitat for wildlife such as spiders and insects that lived on the beach - see BBC article. An example of local custom is the position in the Shetland Isles, where anything left above the high water mark should not be touched, as “someone will be back for it one day”. |
| Beachcombing moves from being an innocent pastime however when it crosses the line to effectively looting, as was seen early this year on the beaches at Branscombe after the wrecking of the cargo ship MSC Napoli. The Napoli lost a number of its cargo containers overboard, leading to pictures of delighted locals wheeling away brand-new BMW motorbikes, as well as the unsavoury sight of personal possessions being picked over and strewn haphazardly across the beach. The story attracted much media coverage and highlighted the widespread ignorance of the position of such items in law. |
| It is not open to such people simply to keep the items recovered. In fact, any item of wreck, which includes anything from in or on the sea, or washed ashore by the tide, must be reported to the Receiver of Wreck, generally within 28 days, who will settle ownership rights. A person declaring wreck may be entitled to a payment in respect of the salvage, or may be given back the property, should the true owner not be ascertainable. The law is contained in the Merchant Shipping Act 1995 and the reporting provisions are found in section 236. “Wreck” includes jetsam (goods cast overboard to save a ship), flotsam (goods lost from a ship recoverable as they float), lagan (goods cast overboard which are rendered buoyant and therefore recoverable) and derelict (property abandoned at sea without hope of recovery) found in or on the shores of the sea or any tidal water. |
| It is therefore clear that the category of items falling within the purview of “wreck” is wide; failure to report is a criminal offence in and of itself; there is also the potential for charges under the Theft Act 1968. If a client regales you with stories of how he found a case of whisky, untouched and unopened on the seashore, it will be prudent to advise him to contact the Receiver of Wreck as quickly as possible and ask for an extension on the 28 day time limit. |
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| Diving |
| Scuba divers and the like are also covered by the provisions of the Merchant Shipping Act 1995 and must declare any wreck that they find. In addition, divers should be aware of both the Protection of Wrecks Act 1973 and the Protection of Military Remains Act 1986. The former requires a licence to visit certain protected wrecks, of which there are about 56 dotted around the British coast. Removing items, tampering, or carrying out unauthorised dives is a criminal offence. The Act also designates certain wrecks as dangerous, with a total prohibition on diving to or near them. Professional divers and those who are diving through a responsible dive school should have nothing to fear. However people wishing to hunt for treasure or valuables, or simply wanting to explore a shipwreck should ensure that they bear in mind the provision of the Act. |
| The Protection of Military Remains Act 1986 makes it a criminal offence to interfere with any crashed aircraft, or any designated vessel. There are some 23 designated vessels at present. The purpose of the legislation is of course to ensure that sites which hold the remains of servicemen killed in action or through misadventure remain undisturbed. It is perhaps surprising that there are relatively few designated vessels under the Act. From time to time campaigns are undertaken to designate new sites as protected; in any case responsible divers will treat any site they visit with respect. |
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| Prospectors |
| “Prospectors” may be actively searching for valuables, by way of a metal detector; they may simply be digging a hole on the beach for fun, or they may, whilst swimming or diving inland, catch the glint of something special. Of course, should their find fall into the category of wreck, as considered above, the relevant provisions will apply. However a prospector is more likely to need to know about the Treasure Act 1996, which codified the previous Treasure Trove provisions. |
| Treasure Trove applied to objects found on land if they passed three tests. The object had to be made substantially of gold or silver; it had to have been buried with the intention to be recovered; and its owners and their heirs must be unknown. The finder had a duty to declare any item which could constitute Treasure Trove, and the local coroner would then establish whether the item passed the necessary tests. If it did, the item was the property of the Crown; often it would be passed to local or national museums. A finder’s fee, assessed by a committee would be payable; if not generally speaking the object was returned to the finder. |
| The 1996 Act has simplified matters somewhat. In general the requirement that Treasure must be buried with the intention to be recovered has been removed, save in certain exceptions (section 9). The definition of Treasure is also extended (section 1), and non-reporting of potential Treasure becomes a criminal offence. There is also provision for a Code of Practice which supplements the legislation. It should be noted that an object is not treasure if it is wreck as defined by the Merchant Shipping Act 1995 (section 3). |
| The Act applies to anything found on land, in lakes and rivers, and on the foreshore (the area between the high and low tidemarks). It does not therefore apply to items found underwater in the sea. It is nonetheless of wide remit. The statutory provisions go considerably further than the old common law and also provide, for example, that landowners and occupiers are entitled to notice of finds on their land. If a client wanders into the office asking for advice about the horde of Roman coins or the treasure chest full of gold that he has dug up on the beach, point him, sharpish, in the direction of the local coroner. |
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| Other considerations |
| It should of course always be borne in mind when looking for items on the beach that general common-sense provisions apply. A bag full of personal items, next to a beach towel, a few metres away from an ice cream van or toilet facilities, is unlikely to be something which could justifiably be picked up by a passing beachcomber. |
| It should also be borne in mind that taking of property belonging to another may constitute trespass or conversion. Further there may be liability as a bailee for any damage caused. |
| Of course these provisions apply only to England and Wales. The position differs in Scotland; and other nations will have their own provisions. There can be territorial disputes in relation to treasure or wreck; and international treaties do exist to deal with such matters. Topically it appears that a dispute may be brewing in respect of the Odyssey Marine Corporation’s recent $500m haul, with the Spanish Government laying claim to the treasure. It was also rumoured, in the alternative, that the find was made off the coast of Cornwall. Such treasure would be wreck and the British Government would potentially have a claim on it. |
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| Conclusions |
| This article has touched on a number of statutory provisions relating to items that may be found, or picked up, on the beach or similar places. It is by no means a comprehensive guide to the position of any finder in respect of the property they have come across. The authors do hope however that this article at least provides an insight into some of the more unusual problems which may present themselves, particularly following the conclusion of the beach season. |
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