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

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

(3) See R.M.S. Titanic, Inc., 171 F.3d at 959-70 (considering such issues as whether salvors in-possession have exclusive rights to photograph vessels and whether U.S. district courts have jurisdiction to decide salvage rights over foreign wrecks resting in international waters).

(4) International admiralty law precedes the U.S. Constitution and has been applied for over 3,000 years. Id. at 960. It was codified as long ago as 900 B.C.E. in ancient Rhodes; 533 C.E. in Rome in Justinian's Corpus Juris Civilis; 1063 in the City of Trani, Italy; and 1189 in England in the form of the Law of Oleron. Id. International maritime laws "constitute a part of the continuing maritime tradition of the law of nations--the jus gentium." Id.

(5) See Koerner, supra note 2, at 49 (noting that laws governing the treatment of shipwrecks are "sketchy"). In addition to jurisdictional issues, controversy exists over whether courts should still apply the laws of finds and salvage to historic shipwrecks. See Joseph C. Sweeney, An Overview of Commercial Salvage Principles in the Context of Marine Archaeology, 30 J. MAR. L. & COM. 185, 199-203 (1999) (arguing that salvage law should not apply to historic shipwrecks); infra Part II.D.2 (discussing the United Nations Educational, Scientific and Cultural Organization's (UNESCO's) goal of effectively abolishing the laws of finds and salvage with respect to historic shipwrecks).

(6) See Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be the "Seabird," 941 F.2d 525, 529 (7th Cir. 1991) (noting that 50,000 abandoned shipwrecks are resting in U.S. navigable waters); Koerner, supra note 2, at 45-46 (remarking that "millions of ships, from prehistoric dugouts to rubber-clad German U-boats, still lie submerged").

(7) See Koerner, supra note 2, at 46 (describing how the "latest generation of survey equipment, diving gear, and aquatic robots puts even the deepest wrecks within reach"). Remotely operated vehicles (ROVs) are highly effective and represent the state-of-the-art in underwater search technology. Id. ROVs recently located a 2,500 year-old Phoenician trading ship under 3,000 feet of water in the Mediterranean and a steamer that sank off the coast of North Carolina in 1857 loaded with three tons of gold. Id. In addition, "there have been a plethora of legal battles since the technology for recovery has become so advanced." Paul S. Edelman, Who Gets Treasure Recovered from Sea?, N.Y.L.J., Dec. 4, 1992, at 3. Current technology is so advanced that "[s]ubmarine robots are now picking up treasure," thus making wrecks resting thousands of feet underwater salvageable. Id. (discussing the discovery of the S.S. Central America 160 miles off the coast of South Carolina at a depth of 8,000 feet); see also Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 455 (4th Cir. 1992) (addressing the ownership rights to the S.S. Central America and its gold treasure that was worth $1.6 million in 1857). The gold was estimated to be worth $1 billion in 1992. Edelman, supra, at 3.