SHIPWRECK TREASURE – WHO GETS THE LOOT?
Ever wandered along the Durban beachfront with a metal detector hoping to strike it lucky? Or dived down to an old wreck hoping to discover a treasure trove? With South Africa’s history of some 3 000 wrecks along our treacherous coastline, such hopes are not outside the realm of possibility and raise various issues in regard to ownership, possession, access to the vessel and treasure, as well as concerns over preservation and tax or duty payable on the treasure found.
Indeed, attitudes towards these wrecks have changed drastically over the years, from the initial feverish treasure hunting to preserving the wrecks and maintaining their historical and cultural value. South African law protects all wrecks and would – be treasure hunters are not permitted to disturb or remove any part of them.
There is a distinction in law between wreck, salvage for reward in a maritime environment, salvage by occupatio of abandoned goods, salvage of a historical maritime wreck and salvage of treasure.
Occupatio is a taking of physical possession of property which has been abandoned, with the intention of taking and exercising ownership over it.
In the case of a wreck, the owner has abandoned the property which becomes res nullius (property belonging to no-one). The correct approach is to refer to the acquisition of a wreck as occupatio.
However, an owner is always able to vindicate (claim back) his property even if some time has passed since possession of the property was lost. If the owner has always had the intention to retain title and ownership, the fact that the property is a wreck that has lain apparently abandoned at the bottom of the sea for centuries is of no consequence. Arguably, the longer the period of time during which the owner has not taken steps to recover his property, the easier it may be to prove that the wreck has indeed been abandoned.
John Hare, in his book Shipping Law and Admiralty Jurisdiction in South Africa, is of the opinion that a ship or any maritime property unattended remains the property of the owner and does not become abandoned property until its owner takes measures to abandon it, or until the law deems it to be reasonable that abandonment be presumed.
Without proof of presumption of abandonment, no one can acquire rights of ownership by occupatio. Abandonment is a question of fact and will depend on the circumstances of each particular case. The erstwhile owner of the property must manifest an intention not to resume ownership.
Two wrecks are worthy of mention: In the case of the Birkenhead, a consignment of gold coins was lost. The vessel was wrecked on 26 February 1852, while transporting troops to Algoa Bay, at Danger Point near Gansbaai, 140 kilometres from Cape Town. The dispute over the ownership of the wreck was settled between the British and South African governments in 1989, with the gold recovered being shared.
The Dodington was wrecked on 17 July 1755 on a reef off Bird Island near Port Elizabeth. The vessel was carrying a consignment of gold and silver of which about 1 200 escaped the hands of looters and was recovered. A third of the coins was returned to South Africa after a lengthy legal wrangle which brought to the fore the limitations in both South African and international maritime law.
Born out of this case was the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage – an international treaty aimed at protection of underwater cultural heritage and the prevention of looting and destruction. It does not change sovereignty rights of States or regulate the ownership of wrecks.
Ancient wrecks should be preserved in the national interest. The National Heritage Resources Act has as its objective the conservation of wrecks which are older than 60 years or which the South African Heritage Resources Agency considers to be worthy of conservation.
Various officials or bodies, empowered under various Acts, have to be consulted in relation to wrecks. These include the Minister of Transport, South African Police Service, South African National Defence Force, Customs officials and the South African Heritage Resources Agency.
The Customs Act provides that no person shall search any wreck or search for any wreck unless he is licensed by the Commissioner to do so and has furnished such security as the Commissioner may require. Such a licence does not convey exclusive rights. Professor Hare states that although the Customs Act is silent on this point, it is the practice of Customs to allow up to 50% of any treasure found to accrue to the State and the remainder to go to the finder, subject to the payment of customs duties and VAT.
So, if there are any Captain Jack Sparrow type fortune hunters out there, the good news is that there is treasure waiting under the seas to be discovered: the sobering news is that it is not a simple matter of finders keepers.
Article by Anisa Govender, senior associate in our Shipping Practice.
*This article first appeared in the Shipping column in the Sunday Tribune.