Academic journal article The George Washington Journal of International Law and Economics

Reconsidering the Maritime Laws of Finds and Salvage: A Free Market Alternative

Academic journal article The George Washington Journal of International Law and Economics

Reconsidering the Maritime Laws of Finds and Salvage: A Free Market Alternative

Article excerpt

"To what cannot you compel the hearts of men, O cursed lust for gold!" 1

I. INTRODUCTION

In September 1857, 600 passengers, having just laid claim to a portion of the gold flowing from the veins of California mountains, boarded a steamship bound for New York.2 The passengers carried more than three tons of gold in their pockets and luggage.3 Crossing the Isthmus of Panama by train, they loaded their precious cargo aboard the S.S. Central America and began the final portion of what would prove to be an ill-fated trip.4 Steaming through international waters, the Central America ran directly into the path of a raging hurricane.5 The ship, crew, and entire cargo were lost at sea approximately 180 miles east of South Carolina.6

The steamship rested on the ocean floor for 130 years-beneath 8500 feet of water and out of the reach of even the boldest underwater explorer.7 In 1987, technological advances in sidescan sonar enabled a group of adventurous Ohio salvagers to locate the ship.8

New technology, enabling treasure hunters to raise artifacts long buried in deep and frigid water, has made these discoveries more common today.9 This technology includes small submarines equipped with arms that can manipulate a variety of tools, tie ropes around heavy items, and retrieve fragile artifacts of different shapes and sizes. 10

The technological revolution has led to the retrieval of vessels and cargoes of enormous value. In addition to the Central America, private treasure hunters have discovered the Titanic, which sank after striking an iceberg 400 miles off the coast of Newfoundland;ll the Andrea Doria, which sank fifty miles off the eastern coast of the United States;l2 the Edinburgh, a Royal Navy cruiser recovered with $80 million in gold;lo and the Mary Rose, one of Henry VIII's fleet, recovered with 17,000 artifacts including breach and muzzle loading guns, sundials, and a barber's amputation tools.14

Different people value these finds for different reasons. To the deep-sea diver, the shipwrecks are places of important recreational pastimes.15 The diver is able to experience history firsthand while seeing evidence of how past sailors and travelers lived and met their fate.ls To archaeologists, the ships represent capsules of history frozen in time.17 In order to reconstruct the events of wrecks, archaeologists painstakingly study and record the type and location of each object found and its relation to other objects.ls

The goals of treasure salvors, however, conflict with those of archaeologists.19 While archaeologists are "primarily interested in what is missing," treasure salvors, motivated by monetary gain, are "primarily interested in what remains."20 Treasure salvors are interested in locating and recovering finds without facing the hassle and expense associated with preserving the archaeological integrity of the find.21

Thus, conflicting views converge on those courts asked to decide to whom the newly discovered property belongs.22 During the past several years, courts worldwide have turned to one of three central legal theories of property to solve the problem: (1) the law of salvage; (2) the law of sovereign prerogative; or (3) the law of finds.23 Although a court's decision to award title to the lost goods may vary depending on which of the three bodies of maritime law it applies, the overall practical effect of the three current systems of law is an enrichment of salvors at the expense of original owners.

This Note compares and contrasts the laws used to determine the property rights of those who have lost goods in international waters. This Note argues that the internationally accepted law of salvage, the British law of sovereign prerogative, and the American law of finds are neither fair nor effective solutions. This Note instead suggests and defends a free market alternative.24

II. APPLICABLE MARITIME LAWS A. The Law of Salvage

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