Still thinking about the London riots, one of the ethical dilemmas that emerged (alongside that old classic, will I allow my criminal 19-year-old to put my council tenancy at risk or will I throw him out?) was the custom of finders keepers. Various accused tried to claim that they had ‘found’ the stolen goods they were caught with. Nobody believed them, but the interesting question is whether that would have made it all right.
In law, no - there is an offence in England of ‘theft by finding’. The Theft Act 1968 defines theft as:
Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
There’s a very good exposition of what this means in practice here by ‘on thin ice’. A finder is obliged to “to take such reasonable and practicable steps as would be appropriate to the property to try and find the true owner”, which might include handing the item in at a police station. The same applies in Scots Law, as far as I can make out, though theft isn’t defined by statute, so isn’t as explicitly formulated to include finding (“innocently or not”).
But there is a lot of ethical and even legal (“reasonable and practicable steps”) wriggle room for people to take advantage of the luck of finding something. The loser has to assert ownership, so the playground chant, “Finders keepers, losers weepers,” is perhaps, basically, an assertion that he will have to do it by force. This point is made by ‘tutuzdad-ga’ here in a very helpful discussion of the proverb, “Possession is nine points of the law.” As he says, “[O]ne who has physical control of his property is clearly at an advantage should his rightful ownership of the property ever be subject to challenge.”
And where is the dividing line between valuable property and trivial stuff? Who goes to the police station to hand in a pound coin? A ten pound note? A twenty? Even the dividing line between property and rubbish is arguable. This was brought to attention recently when a woman in England was charged with theft for taking discarded out-of-date food from a supermarket’s bins. Most people would regard that as abandonment – the supermarket has given up ownership of the goods. That was certainly the attitude of writers in both the Grauniad and, at the opposite end of the political spectrum, the Daily Mail. Obviously, the supermarket stands to lose custom if the ‘freegan’ movement gains momentum, but what could be more clearly abandoned than rubbish in a bin?
Another recent case has much deeper customary roots. When the container ship MSC Napoli was wrecked in 2007, people flocked to Branscombe Beach to help themselves to the wreckage, in scenes reminiscent of Whisky Galore, the film based on Compton Mackenzie’s 1947 novel, itself inspired by the scavenging of the S.S. Politician, wrecked off Barra in 1941. There are songs and reminiscences in the School of Scottish Studies archives (Tobar an Dualchais), for instance these anecdotes from Roderick MacKillop.
What makes scavenging wrecks all right in the popular mind? Let’s consider first what the actual legal situation is. In both England and Scotland, there is a position of ‘receiver of wreck’. This official must be notified when wreckage is found. (There is a recording of George Gear, a receiver of wreck in Shetland, explaining his role.) If unclaimed after a year, wreckage found in UK territorial waters becomes the property of the Crown. The receiver of wreck also deals with claims for payment in respect of salvage services, and may settle these from the sale of wreckage. If goods are perishable, badly damaged or not worth the cost of storage, the receiver will arrange immediate sale.
These rushed sales will obviously raise derisory amounts in many cases, which immediately takes us into the grey area of property of trivial value. People will have correspondingly few qualms about keeping such stuff.
Then the insurance write-off comes into the picture. There are few goods that wouldn’t be damaged by exposure to sea water or by being thrown onto shore in a gale. The shipowners may actually be better off losing the cargo and claiming against insurance, rather than going through the process of reclaiming some of it (or its auction value), possibly in a damaged state, in dribs and drabs, broken out of any packaging, and awaiting collection from some distant coastguard station. When insurance is involved, people seem to see theft as a victimless crime.
Salvage services are another grey area. There are quantifiable costs in terms of time, fuel, damage, etc. if a vessel assists at a shipwreck, but there are also intangibles – the risk to life and limb, the holding oneself and one’s boat ready to rescue strangers in foul weather. Small wreckage is traditionally felt to be a quid pro quo for such things.
Listening to various tracks from the School of Scottish Studies (search on ‘salvage’ and ‘wreck’), it is clear that wreckage was regarded as a perquisite of island life. In the days when ships carried timber as a deck cargo, it was frequently lost or jettisoned overboard, and this was a major source of building timber in the treeless Western and Northern Isles. Other general goods could make a big difference to people living at subsistence level, and occasionally there was the chance to pilfer a really valuable cargo, like coins from the legendary ‘siller ship’, the Vandela, wrecked off Fetlar in 1737.
More brutally, salvage has traditionally been a way of making a living on some parts of the British coast, with life-saving a side issue. Bella Bathurst’s book The Wreckers: A Story of Killing Seas, False Lights and Plundered Ships is a terrific read on this subject.
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