Found at Sea

If you come across a floating package in the middle of the ocean, just drifting away, can you claim ownership over it? You might think, “Sure, why not? Finders keepers.” However, it’s hardly that simple as it depends on several underlying factors. For one, there might be competing property interests. The parties here can typically be narrowed down to two key players: the original owner of the goods and the party that finds it. However, in some cases, there may be a third-party interest. This can occur when the first party to retrieve the floating goods unintentionally loses control of it, letting it float away again and a new finder retrieves it.

To resolve this dispute, it is helpful to look at the doctrine of finders’ rights from the 19th century case Clark v. Mahoney. In that case, the plaintiff found ten timber logs floating in a bay and retrieved the logs, but the timber got free again and the defendants later found them floating and were able to secure the goods. The court held that “In the absence of better title it is as effective a support of title as the most conclusive evidence could be…that the finder of a chattel, though he does not acquire an absolute property in it, yet has such a property, as will enable him to keep it against all but the rightful owner.” The court reasoned that the original finder retained a possessory interest superior to any later finder and ruled in favor of the first finder.

This doctrine of finders’ rights from Clark v. Mahoney provides insights into resolving the dispute over ownership of a floating package. First, the rule requires there to be a finder, someone who takes possession of a lost item with the intent to control it. The person who retrieves the floating package and exercises control clearly qualifies as the finder. Second, the item must be a chattel, meaning a tangible, movable piece of personal property. A floating package fits this definition perfectly since it is a physical object that can be possessed. Finally, the finder’s interest prevails against all but the rightful owner. In this situation, there is no evidence that the original owner abandoned the package or reclaimed it.

Disputes over possession in the open ocean are usually weak because of the large distance between potential finders. Therefore, if you are the first person to come across the floating package with the intent to retrieve it, you are likely the true first finder. However, if multiple vessels are nearby and the goods could have come from a neighboring ship, a dispute might arise. Despite this, the finder’s claim to the package would probably prevail against any later finder. Overall, each element of the Clark rule is satisfied, making the first finder’s possessory interest the strongest claim except for the original owner’s rights.

The doctrine of finders’ rights fits well with the realities of the open ocean. Often, the original owner of a floating good is unknown, thousands of miles away in foreign lands. This rule encourages people to recover lost property rather than let it drift endlessly. You might even say it promotes a cleaner ocean by motivating the removal of floating debris. As the saying goes, “one person’s trash is another person’s treasure.” Finders should act quickly to secure the item, while owners should clearly mark and promptly recover their goods. So, if you come across a floating package drifting in the middle of the ocean, you can claim ownership as long as you are the first finder and the original owner does not come forward.

Prior to starting law school, Max Abraham served four years in the United States Coast Guard, where he sailed across the Caribbean Sea, Eastern Pacific, and Arctic Ocean. Since starting law school, Max has developed a strong interest in international trade and investment law, shipping law, export and import controls, and maritime law.

Image: Pacific Southwest Region USFWS from Sacramento, US, After release, Tucker swims in the open ocean (37001999386).