THAT SHIP THAT CAME IN MOST LIKELY BELONGS TO SOMEONE ELSE

By Berning Robertson Sunday, March 26, 2017
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You see them early in the morning, out with the surfers on dawn patrol, searching the beaches for hidden treasure. Known as “detectorists”, these hobbyists are armed with metal detectors and earphones and scan the sand for coins, jewelry and other metals left the day before by beachgoers.

But who is the legal owner of goods left behind? Is it simply a matter of finders, keepers? Who is the owner of that shipwreck that one could find floating close to shore or deposited on the beach? Can you legally claim part of a wreck if you are the lucky one that happens to come upon it?

“Wreck” is defined by the Wreck and Salvage Act as “any flotsam, jetsam, lagan or derelict, any portion of a ship or an aircraft lost, abandoned, stranded or in distress, any portion of the cargo, stores or equipment, any such ship or aircraft and any portion of the personal property on board such ship or aircraft when it was lost, abandoned, stranded or in distress”.

A wreck is therefore different from goods merely left behind on the beach by beachgoers, although both can be found on a beach.

In South African law a person may acquire ownership of a thing through occupation. Occupation is the physical control of a thing that belongs to no one, with the intention of becoming the owner. The requirements for occupation apply equally to goods left behind, on a beach for example, and to a wreck. The thing or wreck would have to have been abandoned by the previous owner before the thing “belongs to no one”. Only then could you claim ownership by exercising physical control over the thing.

So at what stage does a thing then become abandoned? Abandonment is a question of fact depending on the circumstances of each particular case. In each case the erstwhile owner of the thing must show an intention to no longer retain ownership, or in other words the intention to abandon the thing. The Thermopolae’s cargo lay on the seabed for seven years after she was wrecked in Table Bay in 1899. When salvors attempted to recover cargo the court interdicted the salvors from working on and disposing any of the cargo in favour of the underwriters. However, in another matter, an English court found that allowing a wreck to lie undisturbed for 67 years was a clear indication of abandonment. Abandonment will not be lightly presumed if an object has value.

Wrecks found at sea should be distinguished from treasure found on land. Buried or hidden treasure belongs automatically to the owner of the land on which the owner finds it. If the finder is not the landowner and finds the treasure by accident then half goes to the landowner and half to the finder. In the circumstances, as a general rule, if you happen to find a stash of silver in your back yard, then you would become the owner of it.

However, this does not apply to the stroller who finds a valuable engagement ring on the beach. The engagement ring is to be regarded as a “lost thing” and not abandoned and the owner retains ownership. The stroller does not become the owner until prescription has run its course, which is 30 years. Since a finder of a “lost thing” can in appropriate circumstances be convicted of theft, there is an obligation on him or her to advertise his or her find in local newspapers or to hand it in at the nearest police station. If the owner can be traced, the lost thing must be returned to him or her and the finder is probably entitled to claim his or her expenses.

Where the wreck is washed up on the shore you may acquire ownership through occupation depending always on whether the previous owner intended to abandon it. Unsurprisingly, the state also insists on its share of the spoils. Section 112 of the Customs and Excise Act requires the surrender of the any wreck to the state. The licensed finder is required to pay half the value of the wreck recovered to the state. The chance finder is required to hand over the entire abandoned wreck. In accordance with our common law, the chance finder can keep up to 50% of the wreck and the state shall keep the other half. This provision dates back to the Roman Empire where the finder gets half and the owner of the land gets the other half. In the South African context the owner of the land is the state, since the entire seashore in South Africa vests in the state.

In practical terms what does this mean for the chance finder tripping over a box full of valuable items on a sand dune washed up by the waves? You cannot claim ownership; it belongs to the previous owner unless it was abandoned.

You can therefore acquire ownership of the lost R5 coin or even R200 note as abandonment can be presumed. However as soon as the value of the thing increases, such as the engagement ring, the more unlikely it becomes that it would have been abandoned by its owner. A valuable wreck washed up on shore is therefore unlikely to have been abandoned and will unfortunately not be the ship you were waiting for to come in.

This article first appeared in the Sunday Tribune on 26 March 2017.