Can Dishonesty Be Salvaged? Theft and the Grounding of the MSC Napoli
| Published date | 01 February 2010 |
| DOI | 10.1350/jcla.2010.74.1.616 |
| Date | 01 February 2010 |
| Subject Matter | Article |
Can Dishonesty Be Salvaged?
Theft and the Grounding of the
MSC Napoli
Richard Glover*
Abstract The purpose of this article is to consider the lack of certainty
surrounding the law on dishonesty in theft in the context of events that
occurred on Branscombe beach following the grounding of the MSC Napoli
on the South Devon coast in January 2007—that is the ‘looting and
plundering’ of the containers that came ashore. It will be contended that
the hesitant response of the police to the incident may be explained, in
part, by uncertainty in the law on dishonesty. Further, it will be argued
that the offence of theft is contrary to the rule of law and that the Napoli
incident highlights the need for a statutory definition of dishonesty that
replicates the law in New Zealand.
Keywords Theft; Dishonesty; Legal certainty; Statutory definition;
Salvage
Introduction: the grounding of the MSC Napoli
In January 2009 the Mercer Inquiry published its findings. This was the
report of the ‘local public inquiry’ into the grounding of the MSC Napoli1
in January 2007 in Lyme Bay, on the South Devon coast, and the events
that followed on Branscombe beach.2The Napoli had been sailing from
Antwerp to South Africa, with a cargo of 2,318 containers, when its
crew was forced to abandon her 45 nautical miles south east of Lizard
Point on the Cornish coast owing to serious structural failure of her hull.
She was initially towed and then deliberately grounded off Branscombe
beach because of bad weather and the extent of the structural failure.
The incident generated worldwide publicity, much of which focused
upon what the Mercer Inquiry described as scenes of ‘looting mayhem’3
* Senior Lecturer in Law, University of Wolverhampton; e-mail:
R.Glover@wlv.ac.uk.
I am most grateful to Judge Peter Murphy, Professor Steve Griffin and Mike
Williams for their helpful comments on an earlier draft of this article.
Responsibility for the finished piece and for the ideas expressed in it is, of course,
mine alone. I would also like to thank Judith Forman of the New Zealand
Ministry of Justice, Knowledge and Information Services, for her assistance.
1 Hereafter ‘the Napoli’.
2‘MSC Napoli, the aftermath of the beaching off Branscombe, East Devon, 20
January 2007’. Report of an inquiry by Professor Ian Mercer CBE, available at
http://www.devon.gov.uk/napoli_report_10_final2.pdf, accessed 1 December 2009. The
inquiry was funded by Devon County Council when the government declined to
order a full public inquiry, see Stephen Ladyman MP, Hansard, HC Debs, 28
February 2007, vol. 457, col. 286WH.
3 Ibid. at 3.
53The Journal of Criminal Law (2010) 74 JCL 53–76
doi:10.1350/jcla.2010.74.1.616
that followed the casting upon Branscombe beach of 37 of the 105 cargo
containers washed overboard. Crowds, numbering up to 1,000 at one
time,4descended on the scene ostensibly to ‘salvage’ what came
ashore.
The public authorities, principally the Maritime and Coastguard
Agency and the Devon and Cornwall Constabulary,5were criticised
severely for failing to prevent disorder on the beach and to protect the
proprietary rights of the cargo owners.6The principal reason for their
hesitant approach appears to have been confusion as to how the com-
plex matrix of merchant shipping law, criminal law and environmental
law applied to the incident.7However, importantly, one area of the law
about which the authorities did seem clear, and which was reflected in
the report of the Mercer Inquiry, was that unauthorised removal of
items from the beach amounted to theft.8
Somewhat surprisingly, despite this consensus, there were no arrests
or charges laid for theft. This may be because the police were reluctant
to prosecute for theft because of the nature of the incident—it would
have run contrary to the Force’s well-known ‘community policing’
ethos.9There were also other important policing considerations—this
was, in essence, a public order situation and it was evident that, given
the large numbers of people on Branscombe beach, there were practical
policing difficulties in making arrests for theft. However, a further part of
4Sidmouth Herald, 3 February 2007.
5 Hereafter ‘the Coastguard’ and ‘the police’.
6 For example, ‘Police and coastguards finally wrest control of beach from looters’,
Guardian, 25 January 2007, and ‘Thefts investigated’, Sidmouth Herald, 26 January
2007.
7 For a detailed analysis of the relevant law, see J. Lowther, R. Glover and
M. Williams, ‘Salvage, Pollution or Looting? The Stranding of the Napoli’s Cargo’
(2009) 15 Journal of International Maritime Law 65. It should be noted, in particular,
that the recovery of wrecked property from the foreshore and its taking into
possession to a place of safety by a non-contractual salvor is a perfectly legitimate
activity that is not dependent upon express or implied authorisation by an owner,
provided reporting requirements are complied with under the Merchant Shipping
Act 1995.
8 The report of the Mercer Inquiry made constant reference to ‘looting’, but did not
define what was meant by this term. Presumably, given the emotiveness of the
term, it meant theft rather than failure to deliver salvaged items to the Receiver of
Wrecks, an offence under the Merchant Shipping Act 1995, s. 237(1). Further, the
report implied theft when it stated that when closed containers were broken into
was ‘obviously when the beach became a crime scene’: Mercer Inquiry, above n. 2
at 13, para. 3.2.
9 It is evident from the ‘Force Profile’ at the time of the incident that the Devon and
Cornwall Constabulary placed particular emphasis on community policing: ‘The
Force aim and policing style have been revised to meet the challenges of an ever
changing society and at the heart of this change is the belief that the police
service, together with other relevant partners, should aim to solve the underlying
problems within the community. The objective is to remedy the root causes of
crime and disorder rather than just tackle symptoms as they appear’. This is not
surprising, as Sir John Alderson, noted for his advocacy of community policing,
was the Chief Constable from the 1970s. However, the focus of the 2009/12 Local
Policing Plan is somewhat different, see http://www.dcpa.police.uk/police-plan/
documents/Local%20Policing%20Plan%202009.pdf, accessed 1 December 2009.
The Journal of Criminal Law
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