Helping San Diego, California and beyond since 1997.
Do you need
volunteer, community service, work, military or court hours?
|
|
Helping San Diego, California and beyond since 1997.
|
|
Click here and add this page to your favorites!
|
Encyclopedia Britannica - Main :: WIL-YAK |
|
|
WRECK , a term which in its widest sense means anything without an apparent owner that is afloat upon, sunk in, or cast ashore by the sea; in legal phraseology, as appears below, it has a narrower meaning. Old Norman forms of the word, varec and veresc, are to be found in charters of 1181 and later date; and the former is still in use in Normandy. Latinized it becomes wreccum, wreckum or warectum; and such phrases as marls ejectum, jactura maids, adventura maxis, shipbryche, are all used as descriptions of wreck. In Anglo-Saxon charters stf-Tipwyrp, and in the charters of the Cinque Ports inventiones, a translation of " findalls," probably a, local word, are synonymous with wreck. Formerly an appreciable source of revenue to the crown, afterwards a valuable addition to the income of a landowner Lips of Labrus festiaus. on the sea coast, wreck has almost within modern times ceased to be a perquisite of either, or to enrich the casual finder at the expense of its rightful owner. The history of the law as sketched below will indicate how this has come about. History.Of old it seems to have been the general rule in the civilized maritime countries of Europe that the right to wreck be-longed to the sovereign, and formed part of the royal revenue. This was so under the Roman, French and feudal law; and in England the common law set out in the statute De praerogativa regis (17 Edw. II., 1324) , provided that the king has wreck of the sea, whales and sturgeons taken in the sea and elsewhere within the kingdom, except in certain places privileged by the king. This right, which it is said had for its object the prevention of the practice of destroying the property of the shipwrecked, was, however, gradually relaxed; and the owner of wreck was allowed to recover it if he made claim to it, and gave proof of his ownership within a certain timefixed at a year or a year and a day alike by a decree of Antonine the Great, the feudal law, the general maritime law, the law of France and English law. Richard I. released his prerogative right to wreck to the extent of allowing children, or if there were none, brothers and sisters of a perishing owner, to have his goods; and Henry III., by a charter of 1236, allowed the owner of wrecked goods to have his property again if he claimed within three months, provided that any man or beast escaped from the ship. The statute of Westminster the First (1276, 3 Edw. I.) provided that where a man, a dog or a cat escape alive out of the ship, such ship or barge or anything in it shall not be adjudged wreck, but the goods shall be saved and kept by view of the sheriff, coroner or the king's bailiff, and delivered into the hands of such as are of the town where the goods were found, so that if any one sue for those goods and prove that they were his, or perished within his keeping, within a year and a day, they shall be restored to him without delay, and if not they shall remain to the king or to such others to whom the wreck be-longed. In 1277 the statute De officio coronatoris made provision for the safe custody of wreck, but coroners were relieved of their duties in respect of wreck by the Coroners Act 1887. An act of 1353 provided for the delivery to the merchants of goods coming to land which may not be said to be wreck, on payment of salvage. In Scotland, a statute of Alexander II., similar to that of Westminster, declared that where any creature escapes alive from a wrecked vessel, the goods cast away are not accounted wreck, but are to be preserved by the sheriff for those who within a year shall prove their property therein; otherwise they shall escheat to the crown. For a long time the view of English law was that the right to recover wrecked property depended on the fact of a live creature escaping, though in Hale's words, " because it was lex odiosa to add affliction to the afflicted, it was hound up with as many limits and circumstances, and restricted to as narrow a compass as might be "; and the admiralty records illustrate the statement. Thus in 1382 the prior of Wymondham claimed as wreck a ship which came ashore with no one on board, the men having left her for fear of their lives because of an enemy ship which was about to capture her; but the king's council, before whom it came, by certiorari from the admiral of the north, decided against the claim. In 1543, ships grounded on the Goodwins were held to be waif and wreck, although their crews to save their lives made their way to shore; and in 1637 a ship in the Cinque Ports was proceeded against in admiralty and condemned, " no man or dog being on board, but only a dead man with his head shot off. " Upon the institution of the office of lord high admiral early in the 15th or at the close of the 14th century, it became usual for the crown to grant to the lord admiral by his patent of appointment, amongst other proficua et commoditates appertaining to his office, wreck of the sea; and when, early in the reign of Henry VIII., vice-admirals of the coast were created, the lord admiral by patent under his own hand delegated to them his rights and duties in the several counties, including those in connexion with wreck. He did not, however, part with the whole of his emoluments; his vice-admirals were required to render an account of the proceeds of wreck, and to hand over to him a part, usually one-half, of their gains. This system, depending not upon any statute, but apparently upon an arrangement between the lord-admiral and his vice-admirals, continued until the year 1846. In that year an act (9 & 10 Viet. c. 99) was passed forbidding the vice-admirals to intermeddle with wreck, and it required the receivers of droits of admiralty to receive all wreck from the finders and to detain it for twelve calendar months; at the end of that period it was to be sold and the proceeds carried to the credit of the consolidated fund. The transfer to this fund of the hereditary casual revenues of the crown had previously been effected by legislation in the first years of the reigns of William IV. and Victoria, by which the civil list
interest
interest
Cornwall
The right of the warden of the Cinque Ports to wreck, above alluded to, was derived from charters granted to the ports by Edward I. and his successors; many other seaports enjoyed a similar right under early charters. It would seem that these rights were of some value, for in 1829 the little towns of Dunwich and Southwold litigated at a cost of 1000 the question whether a tub of whisky picked up at sea belonged to the admiralty jurisdiction of the one town or the other; and the town of Yarmouth is said to have spent no less than 7000 upon a similar question. It was partly in order to put an end to all dealings with wreck by local admiralty courts that the Municipal Corporations Act of 1835 was passed, abolishing all of them, except that of the Cinque Ports. Grants of wreck to individuals are earlier than those to towns. Even before the conquest it seems to have been not unusual for grantees from the crown of lands adjoining the sea to get the franchise of wreck included in their grants. A charter purporting to be of the year 1023 contains a grant by King Canute to the abbot of Canterbury of wreck found at sea below low-water mark as far as a man could by wading touch it with a sprit (Kemble, Cod. Dipl., No. 737). There is reason to think that before the end of the reign of Henry II. the crown had granted away its right to wreck round a ,treat part of the coast of England. Although a landowner of the present day, who under such a grant is entitled to wreck, will, in respect of wreck itself, derive no substantial benefit, nevertheless the grant may be of great value as evidence of his right to the fore-shore; and even where no grant of wreck can be produced, if he can show that he and his predecessors have been accustomed to take possession of wreck on the foreshore, it is strong evidence as against the crown of his right to the foreshore, and a lost grant may be presumed. As to these grants of wreck Hale says that " though wreck of the sea cloth de jure communi belong to the king, yet it may belong to a subject by charter or by prescription
prescription
earl
Cornwall
earl
standing
From early times a distinction was made in English law between wreck cast ashore and wreck that is floating or sunken below low-water mark. Wreck proper, or common law wreck, ejectum maxis, is what is cast by the sea upon the shore; for " nothing shall be said to be wreccum maxis, but such goods as are cast or left upon the land " (Sir H. Constable's Case, 1599, 5 Rep. to6), and this belonged to the king jive coronae, and was dealt with by the common law. Floating and sunken wreck belonged to the crown as inter regalia, but was ranted to the lord-admiral jure regis. Even when the office of lord high admiral is in abeyance, and the duties performed by commissioners, as now, these rights are distinguished from the other royal revenues as belonging to the crown in its office of admiralty, or, as they are commonly known, droits of the admiralty. From early times the lord-admiral tried to usurp, and there are several instances of his actually usurping jurisdiction over wreck proper; and in the reign of Richard II. special statutes (which were only declaratory of the common law) were passed for the purpose of confining his jurisdiction to its proper limits. One of these (t5 Ric. II.) declared that " of all manner of contracts, pleas and quereles, and all other things arising within the bodies of the counties as well by land as by water and also of wreck of the sea, the admiral's court shall have no manner of cognizance, power nor jurisdiction, but all such manner of contracts, pleas and quereles, and all other things rising within the bodies of counties as well by land as by water as afore, and also wreck of the sea, shall be tried by the laws of the land and not before nor by the admiral nor his lieutenant in any wise." In spite of this statute, instances still occurred of the admiralty court exercising this jurisdiction, until by frequent prohibition by the common law courts, especially in the 17th century, and by the admission of the admiralty judges themselves, it was recognized as beyond the scope of their authority. These admiralty droits are classified as flotsam, jetsam, lagan and derelict. In Lord Coke's words, flotsam is " when a ship sinks or otherwise perishes, and the goods float on the sea "; jetsam is " when goods are cast out of a ship to lighten her when in danger of sinking, and afterwards the ship perishes "; and ligan, or lagan, is " when heavy goods are, to lighten the ship, cast out and sunk in the sea tied to a buoy or cork, or some-thing that will not _sink, in order that they may be found again and recovered." Derelict is a ship or cargo, or part of it, abandoned by its master and crew sine spe recuperandi et sine ammo revertendi. " None of these goods," adds Coke, " which are so called, are called wreck so long as they remain in or upon the sea; but if any of them by the sea be put upon the land then they shall be said to be wreck" (Sir H. Constable's Case, 1599, 5 Rep. Io6; and 2 Inst. 167). Hale says" they are not wreck of the sea but of another nature, neither do they pass by wreccum marls as is recorded in Sir Henry Constable's case and the case of the 3 Edw. II., where they are styled adventurae maxis. And as they are of another nature, so they are of anothercognizance or jurisdiction, viz. the admiral jurisdiction. Flotsam. jetsam and lagan, and other sea estrays, if they are taken up in the wide ocean, belong to the taker of them if the owner cannot be known. But if they be taken up within the narrow seas that do belong to the king, or in any haven, port or creek or arm of the sea, they do prima facie and of common right belong to the king, in case where the ship perisheth or the owner cannot be known.... But if the owner can be known he ought to have his goods again, for the casting them overboard is not a loss of his property. Although the right of these adventures of the sea within the king's seas belongs to him where the owner cannot be known, yet the king bath little advantage of it, for by the custom of the English seas the one moiety of what is gained belongs to him that saves it [this is not the present rule].... A subject may be entitled to these as he may be entitled to wreck(1) by charter; (2) by prescription " (De jure marls; Hargrave, 41, 42). The difference between these two kinds of wreck is clearly brought out in R. v. 49 Casks of Brandy (1836, 3 Hagg. Ad. 257; and R. v. 2 Casks of Tallow, ibid. 294)a dispute between the crown and a grantee of wreck, where it was decided that objects picked up below low-water mark, and within 3 M. of it, as also objects afloat between high- and low-water marks, never having touched the ground, are droits of the crown, whereas objects picked up aground between high- and low-water marks, or though aground, yet covered by the waves, are wreck. The distinction that Hale draws in the above passage between sea waifs or estrays taken on the high seas, and those taken in the seas of the realm, seems to be founded on the occupatio of the civil law; but although favoured by the similar rule existing in the case of royal fish, it has not been recognized by the courts, which have always held that in both cases they are droits of the crown in its office of admiralty, and, subject to the right of the salvor to reward and the right of the owner to reclaim them in a year and a day, go to the royal revenue (Lord Stowell, The Aquila, 1798, I C. Rob. 37). Lord Stowell bases this prerogative right " on the general rule of civilized countries that what is found derelict on the seas is acquired beneficially for the sovereign, if no owner shall appear." It seems that this was also Coke's view (2 Inst. 168). The provisions of the Merchant Shipping Act 1894, mentioned below, upon the subject of droits of admiralty are not clear. In practice the only droits of the admiralty that are commonly dealt with are anchors that have been slipped or parted from in heavy weather. In the Downs and other roadsteads these are " swept for by creepers towed over the sea bottom, and in former days sweeping for anchors was a common industry. In the Downs large sums have been made after gales in this way. In the 17th century it became customary to obtain from the crown grants of the right to fish for sunken wreck and treasure not only upon English coasts but all over the world. Although a ship on board which, or by means of which a man was killed, might be a deodand (q.v.), yet qua wreck she was not subject to forfeiture as deodand. Present British Law.From the above sketch of the development of the law of wreck it will be seen that it owes little to the legislature. After the act of 1353 110 statute dealt with the subject until 1712. In that year a salvage act was passed, but it made no material alteration in the law; and although during the 18th and early ,9th centuries several acts were passed dealing fragmentarily with wreck and salvage, the act of 1846, above mentioned, is the only one that calls for notice. That act was embodied in and added to by the Merchant Shipping Act 1854, which again was repealed, re-enacted and added to by the Merchant Shipping Act 1894. The last mentioned act contains the whole of the existing statute law upon the subject of wreck within the territorial waters of the United Kingdom. For its purposes wreck includes jetsam, flotsam, lagan and derelict, found in or on the shores of the sea or any tidal water. The term does not extend to a barge adrift in the Thames, nor a raft of timber adrift; it must be the hull, cargo or appurtenances of a vessel. Under the Sea Fisheries Act 1883, passed to give effect to the North Sea Fisheries Convention, the provisions of the Merchant Shipping Act as to wreck apply to fishing boats with their rigging and gear. The provisions of the Merchant Shipping Act dealing with wreck (ninth part) may be summarized as follows: The Board of Trade (as the receiver-general of droits of admiralty) has the general superintendence of wreck in the United Kingdom, and appoints receivers of wreck for the whole coast, who are paid by fees. Where a British or foreign vessel is wrecked, stranded or in distress, at any place on or near the coasts or any tidal water within the limits of the kingdom, it is the duty of the receiver for the district to proceed there and give directions for preserving the ship, the lives on board her and her cargo and apparel. He can require the assistance of any person, especially the master of any vessel, or the use of any waggons, carts or horses, near at hand; and for this purpose any person may, unless there is a public road equally convenient, pass and repass with or without horses or carriages over any adjoining lands without the owner's or occupier's consent, doing as little damage as possible, and may also deposit there any things recovered from the ship; any damage so done is a charge on the ship, cargo or articles, and is recoverable like salvage (q.v.). Penalties are imposed on any owner or occupier hindering the operations. The receiver has power to suppress any plundering or disorder, or any hindering of the preservation of the ship, persons, cargo or apparel. Where any vessel, wrecked or in distress as above, is plundered, damaged or destroyed, by any riotous or tumulsuous assembly ashore or afloat, compensation must be made to her owner in England and Scotland by the same authority which would be liable to pay compensation in cases of riot (q.v.), and in Ireland in cases of malicious injuries to property. In the absence of the receiver, his powers may be exercised by the following officers or persons in successive order, viz. a chief
liver it to that officer as soon as possible, except for reasonable cause, e.g. if, as a salvor, he retains it with the knowledge of the receiver. No articles belonging to a wrecked ship found at the time of the casualty must be taken or kept by any person, whether their owner or not, but must be handed over to the receiver. The receiver taking possession of any wreck must give notice of it, with a description, at the nearest custom-housetand if the wreck is in his opinion worth more than f 2o, also to Lloyd's. The owner of any wreck in the hands of a receiver must establish his claim to it within a year, and on so doing, and paying all expenses, is entitled to have it restored to him. Where a foreign ship has been wrecked on or near the coast, and any articles forming part of her cargo are found on or near the coast, or are brought into any port, the consular officer of the foreign country to which the ship or cargo belongs is deemed to be the agent for the owner so far as the custody and disposal of the articles is concerned. The receiver may in certain cases, e.g. where the value is small, sell the wreck and hold the proceeds till claimed. The right to unclaimed wreck belongs to the crown, except in places where the crown has granted that right to others. Persons so entitled, such as admiralsvice-admirals are mentioned in the act (sed quaere)lords of manors and the like, are entitled, after giving the receiver notice and particulars of their title, to receive notice from the receiver of any wreck there found.. Where wreck is not claimed by an owner within a year after it was found, and has been in the hands of a receiver, it can be claimed by the person entitled to wreck in the place where it was found, and he is entitled to have it after paying expenses and salvage connected with it; if no such person claims it, it is sold by the receiver, and the net proceeds are applied for the benefit of the crown, either for the duchy of Lancaster
The owner of a wrecked ship, sunk by his negligence in a navigable highway, so as to be an obstruction to navigation, if he retains the ownership of her, is liable in damages to the owner of any other ship which without negligence runs into her. If, however, the owner has taken steps to indicate her position, or the harbour authority at his request has undertaken to do so, no action lies against him for negligence either in rem or in personam. He may, however (whether the sinking was due to his negligence or not), abandon the ship, and can thus free himself from any further liability in respect of her. If he abandons her to any other persone.g. an underwriterwho pays for her as for a total loss, that person does not become liable for her unless he takes possession or control in any way. Harbour authorities generally have by local statute, as they have by thegeneral Harbours, Docks and Piers Clauses Act 1847 (if incorporated in their own act), the power of removing the wreck in such a case, and recouping themselves for their expenses from its proceeds. The general act also gives a personal right of action against the owner for any balance of expense over the value of the wreck; but if the owner has abandoned it, and no one else has taken it, neither he nor any one else is liable. A particular or local act (as e.g. one of the State of Victoria) may, however, fasten this liability on the person who is owner at the time when the ship is wrecked, and then he cannot free himself of it. A harbour authority is not obliged to remove a wreck because it has power to do so, unless it takes dues from vessels using the harbour where the wreck lies, or in some way warrants that the harbour is safe for navigation, in which case it is under an obligation to do so. Further statutory provision is now made in this respect by the Merchant Shipping Act,.which empowers harbour authorities to raise, remove or destroy (and meantime buoy or light), or to sell and reimburse themselves out of the proceeds of any vessel or part of a vessel, her tackle, cargo, equipment and stores, sunk, stranded or abandoned in any water under their control, or any approach thereto, which is an obstruction or danger to navigation or lifeboat service. They must first give due notice of such intention, and must allow the owner to have the wreck on his paying the fair market value. The act gives similar powers to lighthouse authorities, with a provision that any dispute between a harbour and lighthouse authority in this respect is to be determined finally by the Board of Trade. Provision is also made by statute for the burial of bodies cast on shore from the sea by wreck or otherwise within the limits of parishes, or, in extra-parochial places, by the parish officers or constables at the cost of the county; and lords of manors entitled to wreck may defray part of the cost of burial of bodies cast up within the manor, as evidence of their right of wreck. The method of dealing with wreck outside territorial waters (which does not come within the scope of the act) is governed by the previous general law relating to droits of admiralty. The Board of Trade, as receiver-general, in its instructions to receivers, directs that wreck picked up at sea out of the limits of the United Kingdom, or brought to it by British ships, is to be taken possession of by the receiver and held by him on behalf of the owners, or, if the owners do not claim it, on behalf of the crown. Derelict ships picked up at sea outside territorial limits and brought into British ports must he delivered to the receiver and kept by him until the owner can be found (but not longer than a year and a day). Wreck picked up Out of territorial limits by a foreign ship need not be interfered with by the receiver, unless upon application by a party interested. For the receiver's rights with respect to property in distress and its liability to salvage, see SALVAGE. By an act of 1896 it is the duty of the master of a British ship to report to Lloyd's agent, or to the secretary of Lloyd's, any floating derelict ship which he may fall in with at sea. Under the Merchant Shipping Act, it is a felony to take wreck found in territorial limits to a foreign port, and it is punishable by fine to interfere with a wreck. The receiver has power, by means of a search warrant from a justice, to search for wreck which he has reason to believe is concealed. By the general criminal law in Scotland plundering wreck is punishable at common law; and in England and Ireland it is a felony to plunder or steal any wreck or part thereof, to destroy any wreck or part thereof, to prevent or impede any person on board a wreck from saving himself, and to exhibit any false signal with the intent of endangering any ship, or to do anything tending to the immediate loss or destruction of a ship for which no other punishment is provided.(R. G. M.; G.G.P.5) End of Article: WRECK If you wish, you can link directly to this article.
<a href="http://jcsm.org/StudyCenter/Encyclopedia/WIL_YAK/WRECK.html"> WRECK </a> |
|
|
(Previous) WREATH (O. Eng. wry, from wriian, to twist) |
(Next) WREDE, KARL |
|
Sponsored Advertisements