The archaeological duty of care: the legal, professional, and cultural struggle over salvaging historic shipwrecks

Albany Law Review, Fall, 2001 by Christopher R. Bryant

"The cultural heritage of the western world, the colonial appetite of the Spanish Empire, nearly three centuries of man's timeless quest for wealth and adventure, and the distribution of authority in the American Federalist legal system are all substantially intertwined [in this Article]." (1)

INTRODUCTION

The law of shipwrecks, treasure, and artifacts is an evolving area of the law (2) with significant social, scientific, cultural, and monetary implications. (3) Moreover, after centuries of international development and application, (4) it remains an unsettled and disputed area of the law. (5) There are countless historic shipwrecks containing valuable treasure and artifacts to which the law must be applied, (6) especially in light of the sophisticated search and salvage technologies now available. (7) In fact, technology is so advanced today that "it [is now] possible to find, visit and remove artifacts from shipwrecks long beyond our power to reach." (8) For example, after resting 12,500 feet below the surface of the North Atlantic from the time of its sinking in 1912, the Titanic was discovered in 1985 nearly 400 miles off the coast of Newfoundland. (9)

With the advent and aggressive use of new technologies, (10) the debate has intensified over whether commercial salvage should be permitted with respect to historic shipwrecks. (11) For instance, many archaeologists consider certain historic shipwrecks to be underwater "museums" containing cultural heritage, (12) while others consider certain shipwrecks, particularly naval wrecks, to be underwater cemeteries that should be protected from salvage or recovery. (13) Salvors, (14) however, dismiss such arguments and contend that archaeologists and other non-profit entities (generally referred to herein as "archaeologists") simply want the opportunity to salvage, recover, or preserve historic shipwrecks themselves. (15) Moreover, salvors allege that if they are precluded from salvaging historic shipwrecks, such shipwrecks will be lost forever because archaeologists lack the requisite funding to perform salvage, recovery, or preservation operations in a meaningful quantity. (16)

In Part I, this Article considers (1) whether historic shipwrecks should be afforded absolute protection as underwater cemeteries, (17) (2) the monetary value placed on historic shipwrecks by salvors, (18) and (3) the struggle between salvors and archaeologists over the proper treatment of historic shipwrecks. (19) Part II discusses the laws of finds and salvage as applied to historic shipwrecks, particularly in light of recent judicial trends, certain federal and state laws, and existing and proposed international treaties. (20) Part III proposes that admiralty courts expand upon the judicially created Archaeological Duty of Care (ADC) as an alternative to the approach now being considered by the United Nations for the management of historic shipwrecks. (21) The ADC imposes certain requirements upon salvors with respect to salvaging historic shipwrecks so as to protect their historical, archaeological, and monetary value. (22) In this last Part, it is also argued that the ADC will preserve the traditional laws of admiralty, the jurisdiction of admiralty courts, and the financial incentives that lead to the discovery of new historic shipwrecks by salvors--all of which the United Nations, among others, is now seeking to abrogate.

I. HIGH STAKES FOR CONTROL OF HISTORIC SHIPWRECKS AND TREASURE

A. Shipwrecks as Protected Cemeteries

Neither history nor the law treats shipwrecks, historic or otherwise, as protected underwater cemeteries. (23) It is argued, however, that salvaging shipwrecks "disturb[s] the final resting places of those who lost their lives in a shipwreck disaster." (24) The historic, social, scientific, and monetary value of historic shipwrecks, however, dictates that they should not be treated as underwater cemeteries protected from salvage or recovery. (25) The decision to recover the H.L. Hunley, a Confederate submarine known to contain the remains of soldiers, underscores the notion that historic shipwrecks should be salvaged and recovered even when human remains are present. (26) Upon recovery, the remains of the Hunley's crew will be studied by a forensic team and then reburied in a military ceremony. (27)

Moreover, throughout history, shipwrecks have been treated as anything but underwater cemeteries. (28) The existence of the laws of finds and salvage illustrates that shipwrecks, historic and otherwise, are viewed under the law as property subject to salvage and recovery. (29) In fact, "the general presumption under the maritime law of salvage [is] that historic shipwrecks are in marine peril and need to be salvaged so that they can be returned to the stream of commerce." (30) Moreover, it should be remembered that while cemeteries are the intended resting place for the dead, shipwrecks are not.

As noted, naval shipwrecks are regarded by some as underwater cemeteries that should be protected from salvage and recovery. (31) For example, in June 1993, a diver discovered a German World War II U-boat off of Cape Cod, Massachusetts. (32) Germany, concerned with preserving the sanctity of the site, argued that the U-boat was a war cemetery and that the bodies contained within the wreckage should not be disturbed by salvors or divers. (33) Despite such protests, however, another U-boat discovered in the Potomac River may become an "underwater park" open to divers. (34) Of course, the U-boat would be of even more value and interest to the public and archaeologists if it were recovered, as was the H.L. Hunley.