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OCEAN LAW FINDERS KEEPERS BY HAYLEY CAMPBELL BSC, LLB, SOLICITOR F ollowing the grounding of the Rena we fielded a number of calls from journalists who wanted a legal view on what people's rights were in relation to containers and anything else they found that came from the stricken ship. The key question was, could they keep it? I imagine you're all familiar with the saying, "Finders keepers, losers weepers", but it's not quite that simple, especially in the maritime realm. "Finder's law" is the common law right of a finder, ie, the first person to take possession of lost or unclaimed property, where taking possession requires the finder to have intent to control the property, and to actually control it in some way. On land there are four traditional categories of "found property" and the rights of the finder (or any claimant, depending on what category the property falls under) depend on what category the found property falls into. For example, abandoned property is property the owner has intentionally and voluntarily relinquished all right, title and interest in and the finder of abandoned property acquires title over that property that is valid against the entire world, including the prior owner. This contrasts with the general rule in respect of lost property (property the owner has unintentionally and involuntarily parted with through neglect or inadvertence and does not know the whereabouts of), or mislaid property (property put somewhere on purpose with an intention to retain ownership but which the owner fails to reclaim or forgets the whereabouts of). In those cases, the owner retains title to the property, even when it is found by someone else. How the finder goes about proving the property was abandoned rather than lost is another matter. In any event, the finder generally acquires title to lost or mislaid property that is superior to the claims of all other persons except the true owner and, sometimes the owner of the land on which the property was located. Things are slightly different on the water. In admiralty law there are different categories of "found property" for property that comes from ships or vessels. The category the property falls into depends on how it came to be lost overboard, and is also how it is treated when it is found. The floating wreckage of a ship or its cargo is called flotsam; jetsam is part of a ship, its equipment or its cargo that is cast overboard or "jettisoned" on purpose to lighten the load when the vessel is in distress. Cargo that is lost overboard and lying on the bottom of the ocean but can be reclaimed is lagan. Lagan can also include cargo still on the deck of a foundered vessel. Derelict is cargo that is also on the bottom of the ocean but which there is no hope of reclaiming. Although the general principles of finder's law could loosely be applied to shipwrecked property, most of it would be classed as lost or mislaid, with no intention on the part of the true owner to forfeit their rights. In addition, a salvor has rights against the property saved in a different way to that of a finder on dry land, and on top of all that, legislative provisions may apply in each case. Here in New Zealand, section 105 of the 1994 Maritime Transport Act applies to wrecks and provides that if a person finds or takes possession of any wreck … they must notify the Director of Maritime Safety that they have found or taken possession of the wreck, and if they are not the owner of the wreck, they must either deliver it to the Police or allow the Police to take possession of it … Section 98 defines "wreck" very broadly to include any ship which is abandoned, stranded or in distress at sea; any equipment or cargo or other articles belonging to or separated from any such ship; or belonging to or separated from any ship lost at sea. It includes shipping containers and property lost overboard or similarly separated from a ship, other than cargo lost in the course of its unloading or discharge from the ship while the ship is in a port. The Rena recovery in progress It is interesting that prior to 1999 a different set of rules applied to the treatment of articles washed ashore, or flotsam, to the treatment of actual wrecks. For now, however, it is fairly clear-cut that anything that comes free from the Rena is covered by section 105 of the act, which requires the finder to notify the director of the find. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 52 Professional Skipper January/February 2012