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Treasure Salvage: Finders Keepers?

Property found in or near the water may take many forms – from a derelict vessel found drifting on the current, to a whale or lump of ambergris washed up on a beach, to a chest full of Spanish doubloons found buried in the sandy bottom.

In each case, the finder may desire to claim it as his own (or at least to claim a substantial reward for finding or saving the item). But how does the law treat each of these situations?

 To find the answer, three things must generally be known about the found property.

These are:

  1. Has the item ever had an owner, and if so, has the owner abandoned it?
  2. Was the item found within State waters?
  3. Was the item found embedded in the seabed?

The answers to these questions will allow the finder to determine whether to assert a claim for title to the found property; whether to pursue a claim for a salvage reward; or whether he possesses any claim at all.

The “Law of Finds” is an ancient principle of Maritime law that evolved from the era when nature still provided many valuable items. Such items may have included the whale or ambergris referred to above. Having come from nature, they would never have been owned by man. Therefore, the first finder to claim ownership is the “keeper.” Manmade property, however, poses a problem under the Law of Finds. This is because the person who lost the property would probably want it back if he knew it had been found. Therefore, it must be determined whether the owner has expressly abandoned the property. If the property was abandoned, then the Law of Finds treats the property as if it has reverted to its natural state. In its natural state, the item is subject to the same “finders-keepers” rule as the whale and the ambergris. However, if the owner has not abandoned his property, then the finder’s only option may be to assert a claim for a reward under the general principles of salvage law.

Abandonment is difficult to establish. In rare cases, the passage of time will be enough, but only when no owner appears to claim his property. This was the outcome of the 1978 claim for the treasure of the Spanish galleon ATOCHA, which sank in 1622. Since Spain did not assert its ownership interest in the legal proceedings, the Law of Finds granted the finders clear title to the treasure. However, in cases in which the owner appears to claim his property, the passage of time will not be enough. The finder must prove by “strong and convincing evidence” that the owner has taken affirmative steps to abandon his property, before the Law of Finds will grant title to the finder. For example, in 1988, searchers discovered the wreck of the CENTRAL AMERICA, a cargo vessel that sank in 1857 in a storm about 160 miles east of South Carolina. The ship carried carrying a cargo of over $1,219,189 in gold (1857 value) from California’s gold rush. After the discovery, several insurance companies asserted that they owned the cargo, because they had paid claims for the lost gold in 1857. Court proceedings determined that despite the passage of 131 years, and their lack of effort to locate the lost gold, the insurers had never taken any affirmative action to abandon their title. Therefore, the finders’ claim of ownership was denied, and the court ordered further proceedings to allow the salvors to pursue their claim for a salvage reward.

Had the gold from the CENTRAL AMERICA been discovered in U.S. waters, the result would have been entirely different. In 1987, Congress enacted the “Abandoned Shipwrecks Act” (43 U.S.C. §§ 2101-2106) in order to preserve coral reefs and historical shipwrecks. The Act provides that abandoned shipwrecks found embedded in the submerged lands of a State, are the property of the State in which they are found. This was the result following the discovery in 1998 of the Spanish warship LA GALGA, which was wrecked in a storm in 1750 just off the coast of Virginia. It was determined that Spain had affirmatively abandoned the ship by the Treaty of 1763 (ending the Seven Years War, and transferring many of Spain’s assets in North America to Great Britain). Because the wreck had been abandoned, and was found embedded in the submerged lands of Virginia, the court followed the “Abandoned Shipwrecks Act” and held that it was the property of the Commonwealth of Virginia (since this decision, the salvors have continued their efforts under a license from Virginia).

As can be seen from these examples, pursuit of a claim for title under the Law of Finds is a risky business. It is difficult to prove an affirmative act of abandonment. Even when it can be proven that the property was truly abandoned, the recovery of the property must be accomplished in secrecy in order to prevent other “finders” from recovering the property. On the other hand, pursuit of a salvage claim can be done openly, and if others assist in recovering the property, then their share of the reward will be determined on an equitable basis. For these reasons, the law favors salvage claims over those presented under the Law of Finds.

Maritime law as it applies to wrecks and found property, is a tangled web of ancient maritime law and statutes. Nevertheless, the basic concepts presented in this article should permit the finder of maritime property to make an educated guess as to whether he possesses a claim for title under the Law of Finds; a claim for a salvage reward; or whether the Abandoned Shipwreck Act will prevent him from making a claim at all. In any case, it is always recommended that the finder of lost maritime property obtain competent legal advice before announcing the find publicly.

© Stephen F. White 2001

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