We sometimes hear of stories of people going out to sea on one boat and returning to port with another boat or part of another in tow. Several years ago, I personally witnessed a small fishing boat towing in a 30-foot plus wooden sailing boat in Mġarr Harbour, which the owner of the fishing boat claimed to have found drifting a couple of miles off Gozo with no one on board.
How does the law regulate such a situation? Can the person who finds a vessel adrift make it his own? What about vessels which have washed up ashore or have sunk? Is it truly a case of ‘finders keepers’? What if the owners turn up?
Unmanned vessels found adrift are generally considered to be items of ‘wreck’ as are vessels found washed ashore, sunken or otherwise stranded. Any object belonging to, or cargo carried on board such a vessel which is stranded, sunken or adrift at sea, are also considered to be part of a wreck. Therefore, the law does not limit a ‘wreck’ to the wrecked vessel itself and seeks to include all associated objects or cargo.
While not an everyday occurrence, finding a wreck at sea sets off a specific process and creates several legal obligations. The subject matter is primarily regulated by the Merchant Shipping Act (chapter 234 Laws of Malta) and the Wreck Removal Convention Regulations (Legal Notice 83 of 2015). The regulations transpose the Nairobi International Convention on the Removal of Wrecks (2007) into Maltese law.
The above body of laws address various aspects of this subject, including what is considered to be a wreck; obligations upon finding one, including reporting its whereabouts to the relevant authorities, marking a wreck considered to be a navigational or environmental hazard; on removing it, who is responsible for the costs involved; and the obligation of owners to insure against wreck-related liability.
The focus here shall be on the rules applicable upon finding a wreck.
These rules apply whenever a wreck is found on Malta’s coasts or elsewhere within Malta’s territorial seas. They also apply when a wreck is found outside Malta’s territorial confines and is brought into Malta’s jurisdiction.
A key figure in this area is that of the ‘receiver of wreck’, which person is appointed on an ad hoc basis by the minister responsible for shipping. There is no permanently appointed ‘receiver of wreck’. The Merchant Shipping Act generally empowers the ‘receiver of wreck’ to administer the findings of any wrecks in Malta, including the preservation of the wreck, cargo and of any persons on board.
Any person who finds or takes possession of any wreck is firstly obliged to notify the ‘receiver of wreck’. The procedure set out at law then varies according to whether the finder is the owner of the wreck or a third party, as follows:
• if it is the owner, then notice to the receiver of wreck must include a description of the wreck, including the marks and other features based on which the owner has recognised the vessel as his own. It is expected that the owner would also need to provide documentary proof of ownership;
• if it is not the owner but a third party, then said third party must deliver the wreck to the ‘receiver’ as soon as possible.
The Merchant Shipping Act generally empowers the ‘receiver of wreck’ to administer the findings of any wrecks in Malta
Cargo from a wrecked vessel appears to be treated slightly differently and must be delivered to the ‘receiver’, irrespective of whether the person finding the wrecked cargo is the owner of the cargo or a third party.
Non-observance of these rules is considered as an offence and any offender shall be liable to a fine (multa). Harsher penalties may be imposed when a wreck or any part thereof (including cargo) found in Malta is delivered to a foreign port and sold there. On such occasions, the offending party may be liable to imprisonment for a period of not less than three years and not more than five.
Salvage also comes into play here. Indeed, a wreck may be considered as an object of salvage.
Salvors of wrecks may, therefore, be entitled to claim salvage fees from the owner of a wreck, provided all the elements of salvage are present.
Failure by a salvor to notify and/or deliver a wreck to the ‘receiver of wreck’ as soon as possible may result in the forfeiting of any claim to salvage. This is a sanction which all potential salvors should be aware of.
Our courts have, however, held that failure to notify the ‘receiver of wreck’ upon finding and taking possession of a wreck may indeed be delayed or not necessary at all should valid reasons be present and that, therefore, the right to salvage is not automatically forfeited (see ‘Charles Grech u Brian Galea v Paul Azzopardi’, Court of Appeal – Superior, 2015).
Once the wreck is in the possession of the ‘receiver’, a description of the wreck is to be published in the Government Gazette. It is suggested that the requirement for publication is not limited to the Government Gazette and is extended to at least two local newspapers and any other place considered adequate by the ‘receiver’.
Within one year from the publication of this notice, a rightful owner is entitled to have the wreck returned in his favour, provided all salvage fees and other expenses due to the ‘receiver’ or the salvor, are paid.
The law also allows the ‘receiver of wreck’ to proceed with the immediate sale of the wreck in those cases when the value of the wreck is insignificant, is substantially damaged, of a perishable nature or is not worth enough to be stored. The proceeds from such a sale shall go towards any expenses incurred by the ‘receiver’ and any excess is thereafter held by the receiver. The excess proceeds remain subject to the same claims, rights and obligations of interested parties, as if the wreck was not sold. It is not clear for how long the ‘receiver’ should hold on to these proceeds, however it is understood that this ought to be for the same period of one year had the wreck not been sold and remained within the receiver’s possession.
Any wreck which remains unclaimed by its owner for more than one (1) year from the notice published in the Government Gazette or which is not sold to a third party, shall be passed unto the Maltese government.
Certain practices which are not directly referred to in the law must also be considered. For instance, the role of the ‘receiver of wreck’ is, in part, carried out by the Ports & Yachting Directorate, Transport Malta. It is suggested that the role of this directorate is provided for through an amendment in the law addressing those instances where the government fails to appoint a ‘receiver’.
Finders of wreck are sometimes permitted to keep wreck objects subject to the approval of Transport Malta.
Transport Malta generally requests such finders to lodge a police report, describe and confirm the discovery of the wreck in an affidavit and submit any other supporting documentation. Additionally, the finding of the wreck is still advertised, adopting the three-month period for lost items before the wreck is released to the finder.
The above practices are generally applied for those wrecks which are of little or insufficient value and which, therefore, do not justify the expenses associated with the formal process of a sale as described above. In effect, such measures are an extension of the power granted to the ‘receiver of wreck’ to proceed with the immediate sale of a wreck.
Discovering a wreck or an object of wreck out at sea leads to a set of procedures and obligations.
Wreck owners, finders, salvors, port authorities and other navigating vessels, among others, each have their own reasons and interests why a wreck should be reported, marked, returned or eventually removed or sold. The law seeks to address all of these interests and it is surely not a case of ‘finders keepers’.
by Jan Rossi, senior associate, Ganado Advocates’ shipping team
Source: Times of Malta