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
great 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
foreshore; 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 doth de jure communi belong to the king, yet it may
belong to a subject by charter or by prescription. . . . Sometime
wreck hath belonged to an honour by prescription, as in the honour
of Arundel, sometimes to the owner of a county. The lords of all
counties palatine regularly had wreccum maris within their counties
palatine as part of their jura regalia, but yet inferior lords might
prescribe for wreck belonging to their several manors within a
county palatine. The earl of Cornwall had wreccum maris per
totum comitatum Cornubiae; for though Cornwall was not a county
palatine, it had many royalties belonging to it, viz. as against the
king, though particular lords might prescribe for wreck against
the earl” (De jure maris, i. vii.; Hargrave, 41). In the Isle of
Man unreclaimed wreck, whether cast on shore or found in the
sea, within the headlands of Man, belongs to the lord, now the
crown by purchase from the duke of Athol; in the Channel Islands
all wreck cast on shore or within reach of a person standing on
shore, except certain valuables which go to the crown, belongs to
the lord of the manor if not reclaimed within a year and a day;
while in Wales the old law made everything thrown on shore belong
to the king, for “the sea is a packhorse of the king” (A. G. v.
Jones, 2 H. & C. 347). In Scotland, as m England, unclaimed
wreck belonged to the crown and was often granted to subjects,
generally under the style of “wrak, waith and ware,” the last two
words signifying derelict and seaweed. It was so granted to the earl
of Orkney in 1581. It was occasionally dealt with by the Scottish
parliament. Thus by an act of 1426, ships wrecked on the coast of
Scotland were to be escheat to the king if they belonged to a country
observing a similar law, otherwise to have the favour shown to ships
of Scotland. In France under the name of droit de bris or droit
d'épave similar grants were made to feudal seigneurs.
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 maris, is what is cast by the sea upon the shore; for “nothing shall be said to be wreccum maris, but such goods as are cast or left upon the land” (Sir H. Constable's Case, 1599, 5 Rep. 106), and this belonged to the king jure coronae, and was dealt with by the common law. Floating and sunken wreck belonged to the crown as inter regalia, but was granted 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 (15 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 something 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 animo 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. 106; and 2 Inst. 167). Hale says “they are not wreck of the sea but of another nature, neither do they pass by wreccum maris as is recorded in Sir Henry Constable's case and the case of the 3 Edw. II., where they are styled adventurae maris. And as they are of another nature, so they are of another cognizance 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 hath 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 maris; 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, 1 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 no 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 19th 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 Irade (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,
