The Archaeological Duty of Care: The Legal, Professional, and Cultural Struggle over Salvaging Historic Shipwrecks

Beginning of article

"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.

Spain, like Germany, has also argued that historic Spanish shipwrecks resting in U.S. waters should be treated as underwater cemeteries. Spain recently challenged a U.S. commercial salvage firm, Sea Hunt, Inc., in U.S. district court over the rights to two Spanish galleons, La Galga and the Juno, which Sea Hunt discovered off the coast of Virginia. (35) It is unclear how many lives were lost on La Galga, but at least 413 lives were lost on the Juno. (36) Spain argued that the shipwrecks were "`military gravesites, and anything that [was to be] done with them must respect those sensitivities.'" (37) While the district court determined that Spain expressly abandoned La Galga under a 1763 treaty ending the Seven Years War, (38) the court of appeals reversed this finding on the grounds that the treaty did not act to expressly abandon La Galga. (39) Spain also retained ownership of the Juno because there was no evidence that Spain had lost title to the vessel (either by expressly abandoning it or because it fell under the actual control of the United States before its sinking). (40) Sea Hunt then sought a partial salvage award from Spain for locating the Juno and for services rendered. (41) Spain argued that the Juno was a "maritime grave" and that it never intended for the Juno to be salvaged. (42) In an unpublished opinion the court later held that Sea Hunt was not entitled to a salvage award from Spain. (43)

A shipwreck that claimed at least 413 lives must be treated with dignity and respect. In light of the potential fortune that may be contained in the Juno, (44) however, some have speculated that Spain will salvage the wreck itself. (45) Regardless, the social, historical, scientific, and monetary value of the Juno as a salvaged vessel far exceeds its value as a so-called underwater cemetery (especially one that is not likely to contain any human remains after nearly 200 years at the bottom of the Atlantic Ocean) and dictates that it should be salvaged. (46)

It is because historic shipwrecks have such diverse value that they should not glibly be labeled as cemeteries and kept off-limits to salvors and others. (47) This value was clearly acknowledged by Congress in enacting the Abandoned Shipwreck Act of 1987 (ASA). (48) For example, in the ASA's Congressional statement of findings (49) and the legislative record, abandoned shipwrecks are described as "resources" over which states have the responsibility of management. (50) Importantly, the ASA does not expressly make reference to human remains. Moreover, the word "resource," as it is commonly understood, is wholly inconsistent with traditional notions of cemeteries. (51)

The United Nations Convention on the Law of the Sea (UNCLOS III) also acknowledges the value of historic shipwrecks, and states that member nations have a "duty to protect objects of an archaeological and historical nature found at sea." (52) UNCLOS III does not define archaeological and historical objects, nor, as with the ASA, does UNCLOS III expressly refer to human remains. (53) Regardless, UNCLOS III states that no admiralty laws, including the law of salvage, are affected by this duty. (54) Therefore, because the laws of finds and salvage do not prohibit the salvaging of wrecks containing human remains, even if the definition under UNCLOS III of an archaeological or historical object did include human remains, nothing in UNCLOS III would prohibit salvaging vessels containing human remains. (55)

Historic shipwrecks must be treated with respect, particularly if they contain, or contained, human remains. This respect, however, should not extend so far as to treat historic shipwrecks as underwater cemeteries that cannot be salvaged for various purposes. (56) Such treatment is an "extreme form of preservation" (57) that vitiates the historic laws of finds and salvage and dooms shipwrecks to complete loss with the passage of time. Consider that,

   Within the anthropological and archeological fields, it is widely
   acknowledged that the quest for knowledge about the past and the
   preservation of that knowledge for future generations is an important
   endeavor; it is also widely acknowledged that to gain such knowledge
   requires examining ruins of earlier cultures--including human skeletal
   remains. (58)

B. Gold and Fame

The monetary value of many historic shipwrecks and the availability of new technology has drawn an increasing number of salvors into the salvage industry. (59) As a result, the debate over salvaging historic shipwrecks is now intense. (60) Two such salvors are Phil Masters and Barry Clifford, both of whom left behind more traditional lifestyles to undertake salvaging historic shipwrecks. (61) Masters discovered the Feversham, a British frigate that sank in 1711; Blackbeard's flagship, the Queen Anne's Revenge; (62) and El Salvador, a Spanish galleon that sank in 1750, carrying 240,000 gold and silver pesos. (63) Masters stated that he wants to make El Salvador a household name like Titanic by producing documentary videos and auctioning off recovered treasure and artifacts. (64) Clifford has been referred to as "ultra-famous" for discovering the pirate ship Whydah in 1984 (65) and his fame may grow if his recent claim of finding an artifact from the Boston Tea Party is valid. (66)

Fame aside, the potential for overwhelming financial reward is the true engine behind the salvaging of historic shipwrecks. (67) Not surprisingly, it is also what concerns and disturbs many archaeologists the most. (68) Salvaging historic shipwrecks is so prohibitively expensive, that outside investors are often sought to fund salvage operations. (69) Investors, however, are often left disappointed and disillusioned. (70) Returns have been astounding, however, with respect to El Salvador, discussed above, (71) and the Spanish galleon the Nuestra Senora de Atocha (the "Atocha"), discovered by famed treasure hunter Mel Fisher. (72) For example, the Atocha sank in 1622, forty nautical miles west of Key West, Florida, with a "cargo of New World treasure" bound for Spain. (73) Profits earned from, among other things, selling the Atocha's treasure, valued at between $250 and $400 million, were largely returned to investors of the salvage operation. (74) Artifacts and treasure from the Atocha can be purchased on the Internet and at Fisher's Key West museum and exhibition at prices reaching $3,000. (75)

Not unlike Mel Fisher's aggressive marketing of the Atocha's artifacts, the salvors of the Titanic entered into a licensing agreement with an event promotion firm to market and create exhibits with the Titanic's artifacts. (76) The deal was to pay the salvors a minimum of $8.5 million per year. (77) Moreover, items recovered from the Titanic at the time of its sinking, such as a boarding pass and a desk chair, were sold for nearly $100,000 and $500,000, respectively. (78) A similar marketing strategy is being planned for Blackbeard's pirate ship, and will likely include a documentary and the sale of replicas of artifacts found within the vessel. (79)

There are numerous other historic shipwrecks containing gold and valuable artifacts that have been the subject of salvage operations (and, of course, disputes over salvage and ownership rights). (80) For example, the Brother Jonathan sank in 1865 off the coast of California with gold bullion then valued at up to $2 million; (81) the Islander went down near Juneau, Alaska in 1901 with a sizable shipment of gold for the Canadian Bank of Commerce; (82) the Aquila sank in 1863 off the coast of San Francisco with armaments and materials then worth $400,000; (83) and the I-52, a Japanese WWII submarine, sank with nearly 4,500 pounds of gold bullion, currently valued at $25 million. (84)

C. Salvors Versus Archaeologists

1. Profits and Funding

Professional competition and jealousy fuel the debate between salvors and archaeologists over the management of historic shipwrecks. For example, salvors are generally better funded than archaeologists, yet they lack the professional legitimacy enjoyed by archaeologists. (85) The cornerstone of archaeologists' opposition to the commercial salvage of historic shipwrecks, however, is that salvors are profit driven and traditionally have not used archaeologically sensitive methods. (86) The potential for riches drives salvors to undertake expensive and risky salvage operations. (87) Archaeologists and museums, however, view profiting from salvaging historic shipwrecks as a taint on the profession of marine archaeology. (88) Many museums refuse to exhibit artifacts recovered by salvors because they "`don't want to be partners in the marketing or trafficking of archaeological materials,'" (89) nor do they want to give the artifacts a "pedigree," thus driving up their market value. (90) The importance of salvors partnering with museums, however, may be diminishing in light of the growing use of other marketing tools such as the Internet and self-created exhibitions. (91) Regardless, it is likely that most archaeologists will continue to oppose or contest most, if not all, commercial salvage operations involving historic shipwrecks. (92)

The disparity in funding between salvors and archaeologists is often stark. The cost of locating and salvaging a vessel is so prohibitive that many archaeologists simply lack the resources to search for shipwrecks and salvage or recover them. (93) For example, it was initially estimated that the cost of salvaging the Titanic could exceed $1 billion. (94) Moreover, one salvor spent $1 million to locate two Spanish galleons; (95) salvaging El Salvador will likely cost an additional $5 to $10 million; (96) $12.7 million has already been invested in salvaging the Central America; (97) it cost $2 million (1971 value) just to locate the Atocha; (98) and in 1863, a failed attempt to salvage the Camanche cost $38,000, followed by an attempt to recover the vessel at a cost of $110,000. (99)

Archaeologists, however, deny that they lack sufficient funding, or that it factors into their opposition to commercial salvaging of historic shipwrecks. (100) Instead, archaeologists argue that they are opposed to such salvage, in part, because salvors lack expertise and often damage or destroy historic shipwrecks and artifacts. (101) While this argument has merit, barring salvors from salvaging historic shipwrecks will bring about an end to the discovery and salvage or recovery of such shipwrecks in any meaningful number. (102) Many salvage operations cost more than $30,000 per day. (103) Archaeologists generally will have difficulty affording such an expense over the course of a prolonged salvage operation, and will often argue that it is better to forestall salvaging until the requisite funding is available and a proper excavation can be undertaken. (104)

2. Delay and Marine Peril

Archaeologists object to salvors profiting from the salvage of historic shipwrecks. (105) Archaeologists, however, usually are not interested in--or capable of--salvaging a significant number of vessels themselves. (106) Indeed, it has been said that "`qualified marine archaeologists' have yet to discover a single shipwreck site in North American waters." (107) The passage of time coupled with the lack of funding and interest on the part of archaeologists is detrimental to historic shipwrecks because shipwrecks, subjected to the elements and other perils, simply deteriorate. (108) The Fourth Circuit has described the Lusitania as being in "marine peril," a condition that is presumed of sunken shipwrecks, because of the obvious risk of loss to the wreck and its contents. (109) The risk of loss is caused by the actions of the elements, (110) dredging and oil-drilling operations, (111) vandalism, (112) and artifact pirates. (113)

The risk of marine peril at the hands of pirates and recreational divers should not be underestimated. (114) Many recreational divers pick apart both historic and non-historic shipwrecks over which they do not have title or salvage rights. (115) Of course, many of the vessels dived on by recreational divers are not yet of historic value or interest to salvors or archaeologists and remain unclaimed through the laws of finds or salvage. Regardless, there can be no doubt that recreational diving and the threat thereof places historic shipwrecks in extreme marine peril. (116) Clearly, the longer a ship remains below the sea, the greater the risk of its deterioration and destruction, until the wreck is of little value even to recreational divers. (117)

3. Eliminating Competition from Salvors

If archaeologists are successful in barring their more aggressive and successful competitors--salvors--from salvaging historic shipwrecks, it may result in numerous historic shipwrecks remaining undiscovered forever (118) or being "preserved" in situ. (119) These scenarios, however, are unacceptable. First, the view that historic shipwrecks are somehow sacred, whether as underwater cemeteries or as de facto underwater museums, and should therefore be left untouched, is an "extreme form of preservation." (120) Historic shipwrecks possess too much social, historical, scientific, and monetary value to be treated as underwater tombs or in situ museums, accessible only by a few. (121) This approach would limit access to historic shipwrecks to recreational divers, (122) high-end tourist ventures, (123) those capitalizing on wrecks via underwater movies and video feeds, (124) and, of course, archaeologists. (125) Second, this approach would, in effect, place historic shipwrecks within the sole province of archaeologists. This "[j]ealous safeguarding" of shipwrecks by archaeologists for their own purposes is known as "opportunity preservation," and occurs when archaeologists "maneuver ... to limit access to and competition over an item." (126) If only archaeologists have the right to conduct salvage, recovery, and scientific expeditions, shipwrecks may be lost forever because archeologists traditionally lack both the funding and speed required to recover historic shipwrecks and artifacts. (127) Therefore, it seems clear that "without private treasure hunters the sea will retain its ill-gotten bounty and the secrets of ages past." (128)

4. Responsible Salvage

Salvors have not always been careful to preserve the integrity and value of historic shipwrecks and artifacts, (129) even when acting under the laws of finds and salvage. (130) Irresponsible salvage is not consistent with the public's interests in historic shipwrecks, (131) and hinders the pursuit of historic preservation and learning. (132) Ironically, the more that historic shipwrecks and their artifacts are damaged during salvage, the less salvors are likely to recover by way of salvage awards or selling artifacts. (133) In addition, negative publicity resulting from salvage operations only makes it more difficult for salvors to exhibit recovered artifacts in already skeptical museums, (134) and, ultimately, to market artifacts from the wreck.

As a result, some salvors have attempted to adhere more strictly to generally accepted archaeological procedures when salvaging historic shipwrecks and have formed trade organizations that impose certain conditions and restrictions upon members with respect to treatment of historic shipwrecks, artifacts, and the environment. (135) Their success, however, may be limited because so many archaeologists still refuse to work with salvors. (136) Regardless of the obstacles, not only is this approach sensible with regard to maximizing profits from salvage operations, it may help salvors fend off professional and political attacks and gain respectability and legitimacy in the field of underwater archaeology and marine recovery. (137) Thus, while the work of salvors has led to the discovery of numerous historic shipwrecks and the preservation of their artifacts, (138) clearly, the profession can do better. (139)

II. HEAVY SEAS FOR THE LAWS OF FINDS AND SALVAGE

The debate over whether it is appropriate for salvors to continue to salvage historic shipwrecks is largely centered around whether the laws of finds and salvage, after centuries of evolution and application, are still relevant to historic shipwrecks. (140) In light of growing public policy concerns and existing and proposed national and international measures, the laws of finds and salvage have been marginalized and are in danger of being displaced altogether. (141)

A. "`Finders, Keepers'" (142)

The law of finds vests title to property that has been lost or abandoned in the first person that lawfully and fairly appropriates the property and reduces it to his or her possession with the intention to become its owner. (143) Mere discovery of lost or abandoned property is not sufficient for title to be granted to a finder; the property must be reduced to actual or constructive possession. (144) In Treasure Salvors, Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, (145) for example, the court stated that the law of finds applied to the Atocha because it was abandoned--as it had been "lost for centuries"--and because it was uncontested that plaintiffs "were in possession of the Atocha." (146) In order to decide whether property is either lost or abandoned, courts consider several factors, including: (1) the condition of the property at the time it was abandoned; (2) the amount of time that has passed since the property was lost or abandoned; (3) any steps taken by the original owner to recover the property; and (4) whether the original owner has relinquished all hope of recovery. (147)

The law of finds is now generally accepted as a maritime concept despite lacking an admiralty pedigree. (148) Some courts, though, have been reluctant to apply the law of finds to shipwrecks. (149) Previously, the law of finds was seen as more appropriate for property--such as whales and fish--that had never been owned by anyone. (150) The recent trend, however, as illustrated by Chance v. Certain Artifacts Found and Salvaged from the Nashville (151) and Treasure Salvors, Inc., is to apply the law of finds to historic shipwrecks because the passage of time creates an inference that the original owner has abandoned the vessel. (152) Thus, with respect to "`treasure salvage cases ... involving wrecks hundreds of years old, the inference of abandonment may arise from lapse of time and nonuse of the property.... This calls for the application of the law of finds.'" (153) Some courts, however, are unwilling to apply this recent trend or to dispense with the "nonabandonment fiction"--which holds that ships are never abandoned--unless more evidence exists than mere passage of time. (154)

As a result of the ASA, however, the law of finds no longer applies to shipwrecks that are located in U.S. territorial waters and that are "embedded" or "on submerged lands," as defined by the statute. (155) The effects of this abrogation of a long-standing law of admiralty are discussed below. (156) In addition, it is argued below that, despite the recent trend to the contrary, the law of salvage should be given preference over the law of finds with respect to historic shipwrecks because, once title vests in the finder, admiralty courts lack jurisdiction to ensure that the finder protects the archaeological integrity and value of the historic shipwreck and its contents. (157)

B. The Law of Salvage

The law of salvage, unlike that of finds, does not divest title to a vessel from its owner. (158) In fact, the nonabandonment fiction states that "an owner ... retains title to a ship no matter how long it has been abandoned." (159) Instead, salvage rewards the salvor with a generous and liberal percentage of the value of the saved vessel and/or its cargo and contents. (160) In some cases, especially when no owner comes forth to claim the vessel or property recovered from it, the admiralty court will award the salvor the full value of the vessel and/or whatever was recovered therefrom. (161)

Salvage is intended to save and preserve property that is in marine peril from destruction, damage, or loss and to compensate the salvor with an award determined by an admiralty court. (162) It is well established that to assert a successful salvage claim, it must be shown that: (1) the vessel or cargo was in marine peril; (163) (2) the salvor rendered service voluntarily; (164) (3) the salvor was successful either in whole or in part; (165) and (4) the salvor established "possession" over the shipwreck. (166)

Once a salvor has successfully asserted a salvage claim, the court will determine the award by considering various factors, including:

   (1.) The labor expended by the salvors in rendering the salvage service.
   (2.) The promptitude, skill, and energy displayed in rendering the service
   and saving the property. (3.) The value of the property employed by the
   salvors in rendering the service, and the danger to which such property was
   exposed. (4.) The risk incurred by the salvors in securing …