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

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

Archaeologists, academics, historians, and government entities, however, have no faith in the laws of finds and salvage nor in the international admiralty courts to protect the historical value and integrity of historic shipwrecks during salvage operations. Instead, such constituencies supported the enactment of the ASA and UNCLOS III, and are now seeking what is essentially the outright abrogation of the laws of finds and salvage through the enactment of the UNESCO Draft.

Admiralty courts, however, should not be stripped of their control over historic shipwrecks in this manner. While admiralty courts traditionally may have ignored archaeological and historical considerations when granting finds or salvage claims to historic shipwrecks, these courts have begun to recognize the importance of addressing these considerations. (287) As such, admiralty courts are beginning to incorporate the ADC or similar duties and obligations into the elements necessary to establish a finds or salvage claim to a historic shipwreck. The ADC requires clarification by the courts, but, as a more widely and uniformly applied element of the laws of finds and particularly salvage, the imposition of this duty represents a reasonable solution to the conflict over salvaging historic shipwrecks.

The "quest for knowledge about the past and the preservation of that knowledge for future generations" is only possible if the quest is undertaken. (288) If archaeologists are successful in abrogating the laws of finds and salvage, salvors will have no incentive to locate and salvage or recover historic shipwrecks. In fact, because in situ preservation is a central theme of the UNESCO Draft, as is prohibiting the sale of artifacts recovered from historic shipwrecks, it appears that destroying the economic incentives underlying salvage is a primary goal of the UNESCO Draft. Unfortunately, this extreme approach will ensure that few, if any, historic shipwrecks will be located in international waters. And those that are will be left to rot into nothingness.

(1) Cobb Coin Co. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F. Supp. 540, 544 (S.D. Fla. 1982). The court's poetic statement concluded with "in this litigation." Id.

(2) For example, the United Nations convened the Third Conference on the Law of the Sea (UNCLOS III) as recently as 1982, dividing national sovereignty over navigable waters into zones. See Third United Nations Conference on the Law of the Sea, United Nations Convention on the Law of the Sea, Oct. 7, 1982, U.N. Doc. A/CONF.62/122, 21 I.L.M. 1261 [hereinafter UNCLOS III].

A nation's ability to assert jurisdiction over a shipwreck depends upon the location of the wreck. See id. passim; see also R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 964-65 (4th Cir.), cert. denied, 528 U.S. 825 (1999); Anne M. Cottrell, Comment, The Law of the Sea and International Marine Archaeology: Abandoning Admiralty Law to Protect Historic Shipwrecks, 17 FORDHAM INT'L L.J. 667, 668-72 (1994) (observing that shipwrecks found in international waters are subject to fewer restrictions than those found within a nation's jurisdiction); David C. Frederick & Caroline M. Blanco, A Look at ... Sunken Treasure; Legally, the Waters Are Murky, WASH. POST, Aug. 30, 1998, at C03, 1998 WL 16552808 (noting that "[t]he fate of wrecks now depends entirely on where the ship happened to sink"). Although UNCLOS III became effective on November 16, 1994, the United States has not ratified it. Brad L. Bacon, Note, Enforcement Mechanisms in International Wildlife Agreement and the United States: Wading Through the Murk, 12 GEO. INT'L ENVTL. L. REV. 331, 352 (1999). Even though it has not been ratified, UNCLOS III may still be binding on the United States. For example, at least one lower court recently held that the United States is bound by UNCLOS III pending ratification or rejection by the Senate. See Mayaguezanos Por La Salud Y El Ambiente v. United States, 38 F. Supp. 2d 168, 175 n.3 (D.P.R.), aff'd, 198 F.3d 297 (1st Cir. 1999) (indicating that the United States must adhere to "`the agreement to which the executive branch has tentatively made the United States a party'"); see also Lawrence J. Kahn, Comment, Sunken Treasures: Conflicts Between Historic Preservation Law and the Maritime Law of Finds, 7 TUL. ENVTL. L.J. 595, 641 (1994) (stating that UNCLOS III places obligations upon the United States to preserve archaeological finds). In addition, the United States enacted the Abandoned Shipwreck Act of 1987 (ASA), which seeks to protect certain shipwrecks resting in U.S. waters by vesting title in such wrecks with states. See Abandoned Shipwreck Act of 1987, Pub. L. No. 100-298, 102 Stat. 432 (1988) (codified at 43 U.S.C. [subsection] 2101-2106 (1994)); Brendan I. Koerner, The Race for Riches: Under the Sea, Treasure Hunters and Scientists Battle for History's Bounty, U.S. NEWS & WORLD REP., Oct. 4, 1999, at 44, 49 (stating the ASA "grant[s] states ownership of abandoned wrecks within 3 miles of their coasts"). UNCLOS III and the ASA are discussed in Part II herein. In addition, the laws of finds and salvage as applied to historic shipwrecks are still evolving. See infra Part II.