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Abstract
The wrecking of the Falmouth Postal Packet Hanover in 1763 led to three legal disputes and two court cases—in 1766 and 1997. This article recounts the origins and course of these disputes. It examines what the resolution of the 18th‐century case and the second dispute has revealed of the law and practice of marine insurance in the mid 18th century. It further examines what the 20th‐century case has revealed concerning the tension between ancient principles of commercial salvage and modern principles of heritage protection. Somewhat fortuitously, the examination of the case provides an opportunity to advance a simple solution to this conflict.
Acknowledgements
Unpublished manuscripts have been made available to the authors by A. Campbell (1998, ‘Post Office Packet Services: Articles of Agreement’) and E. Yescombe, (nd, manuscript on history of Yescombe family, ch. 6, Lisbon Packet: The Life of Capt. Edward Bayntun Yescombe (1765–1803).
Notes
1. CitationRyan v. Oceanic Steam Navigation Co. (claim against the White Star Line by a relative of a passenger).
2. See CitationR.M.S. Titanic v. Wrecked & Abandoned Vessel, in which the history of these cases is summarized.
3. See further CitationKing & Chapman v. Owners etc. of Sailing Vessels La Lavia, Juliana and Santa Maria De La Vision.
4. The Post Office was established on 9 June 1657 by the Citation29Post Office Act 1657; at the Restoration, this was replaced by the CitationPost Office Act 1660.
5. Campbell incorrectly asserts that the Post Office never owned packets itself, see Post 97/13/45.
6. The case report quantifies this as £48, four shillings. However, it is mystifying to calculate the proportion, which produces a figure of 23.33%. It is tempting to conclude that the precise figures are inaccurate.
7. Correspondence with Lt‐CDR. Beck R.N. 10 Dec. 1997. The clumsy construction of the document may reflect this chronology, in that the first clause reflects the original terms, while the subsequent clause was added when the Post Office assumed war risk. Rather than commencing afresh, amendment of an existing precedent would have had obvious appeal to the draftsman.
8. Not to be confused with Colin J. M. Martin, Advisory Editor of this journal.
9. The factual information regarding the claim and background is taken from the salvors' statement of claim dated 22 July 1997, filed in support of its application for judicial review of the decision to impose the emergency Designation Order. This was obtained from DCMS under a Freedom of Information request. The factual allegations recited here have not been formally examined by a court, since the application was settled prior to the hearing. However, the settlement, which was in favour of the salvors, would be unlikely to have been agreed unless the factual basis of the complaint was substantially correct. Moreover, the facts referred to also correspond with information obtained by the authors from sources closely involved with contemporary events.
10. This information was obtained from DCMS under a Freedom of Information request.
11. The Bill was dropped from the Queen's Speech in autumn 2008 to create legislative time for finance bills. On 3 December 2008 DCMS wrote to interested parties confirming that the government remained committed to legislative reform but to date no Parliamentary time has been committed.
12. Under Clauses 46, 47 48 and 49 a Marine Heritage Site can only be registered if it comprises a marine heritage Asset of special historic, archaeological or artistic interest (‘special interest’).
13. Aside from Citation39the Tubantia there has only been one further reported case, that of CitationMorris v. Lyonesse Salvage Co. Association sub.nom. The Association and The Romney [1970] 2 Lloyd's Rep. 59). This is the only case relating to historic wreck.
14. The UK has not signed the UNESCO Convention but has stated that it will apply the Rules, which are based on the ICOMOS Charter and represent international ‘best practice’ in conserving underwater cultural heritage. (Written Answers to Questions, Monday, 24 January 2008. Column 46W: http://www.parliament.uk.).
15. Under Article 30 (1) (d) a party to the Convention may reserve the right not to apply the Convention to ‘maritime cultural property of pre‐historic, archaeological or historic interest’.