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

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

(35) Sea Hunt, Inc. v. The Unidentified, Shipwrecked Vessel or Vessels, 47 F. Supp. 2d 678, 680 (E.D. Va. 1999), aff'd in part, rev'd in part, 221 F.3d 634 (4th Cir. 2000), cert. denied, 121 S. Ct. 1079 (2001) (noting that the galleons sank in 1750 and 1802, respectively); see also Koerner, supra note 2, at 50 (reporting that Sea Hunt spent $1 million in its search for the galleons).

(36) Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 639 (4th Cir. 2000), cert. denied, 121 S. Ct. 1079 (2001).

(37) Koerner, supra note 2, at 50; see Sea Hunt, Inc., 47 F. Supp. 2d at 692 (noting Spain's argument that the Juno should be designated as a grave site).

(38) See Sea Hunt, Inc., 47 F. Supp. 2d at 688, 690-92 ("Article XX of the 1763 Treaty constitute[d] ... an express abandonment by Spain of its title to LA GALGA. LA GALGA is consequently an abandoned shipwreck, and belongs to Virginia under the terms of the Abandoned Shipwreck Act.").

(39) See Sea Hunt, Inc., 221 F.3d at 646 (concluding that although the treaty expressly abandoned land and property, no mention of property in the sea was made in the applicable provision).

(40) See Sea Hunt, Inc., 47 F. Supp. 2d at 691-92. The court noted that there is no such doctrine as "`constructive capture.'" Id. at 691. Thus, a "captor must have actual control over [an] enemy ship to establish capture before sinking." Id. Because there was no evidence that the United States had actual control over the Juno before it sank, Spain retained title to the Juno. See id. at 691-92. It has been said, however, that when a vessel is destroyed and sinks, any jurisdiction its country of origin had over it ceases. See United States v. Smiley, 27 F. Cas. 1132, 1134 (C.C.N.D. Cal. 1864) (No. 16,317); see also Mary S. Timpany, Note, Ownership Rights in the Titanic, 37 CASE W. RES. L. REV. 72, 96 (1986) (stating that the Titanic's British registry did not give Great Britain exclusive jurisdiction over the Titanic or property recovered from it). In light of the preceding, Spain's claim to title to the Juno is not so clear.

(41) Sea Hunt, Inc., 47 F. Supp. 2d at 692.

(42) Id.

(43) See Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 191 F.R.D. 508, 510 (E.D. Va. 1999) (noting therein, without discussion of the merits of Spain's claim that the Juno is a "maritime grave," that the court had entered a decision on June 25, 1999 denying Sea Hunt a salvage award with respect to the Juno). In affirming the denial of a salvage award, the court of appeals noted that the district court stated:

   "It is the right of the owner of any vessel to refuse unwanted salvage. Sea
   Hunt knew before bringing this action that the JUNO was a Spanish ship and
   that Spain might make a claim of ownership and decline salvage.... Because
   Sea Hunt had prior knowledge of Spain's ownership interests and had reason
   to expect Spain's ownership claim and refusal to agree to salvage activity
   on JUNO, Sea Hunt can not be entitled to any salvage award."