-- The search text of this PDF is generated from uncorrected OCR text.

Transcription

1 Citation: 33 Tul. Mar. L.J Content downloaded/printed from HeinOnline Thu Nov 3 12:27: Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information

2 TULANE MARITIME LAW JOURNAL VOLUME 33 SUMMER 2009 NUMBER 2 Historic Wreck Salvage: An International Perspective Craig Forrest* I. INTRODUCTION II. AN OUTSIDER'S VIEW OF U.S. HISTORIC SHIPWRECK SALVAGE LAW AND PRACTICE III. SALVAGE LAWAPPLIED TO HISTORIC WRECK A. US. Admiralty Courts' Constructive In Rem Jurisdiction B. US. Salvage Law as Jus Gentium IV EQUIVOCAL U.S. LAW AND PRACTISE A. The Application of Salvage Law in US. Litigation B. Salvage Law and US. Statutes V A COMPARATIVE NATIONAL PERSPECTIVE VI. AN INTERNATIONAL PERSPECTIVE A. The United Nations Convention on the Law of the Sea B. The 1989 Salvage Convention C 2001 UCHConvention The Salvage Law Clause The Non-Commercialization Clause D US. Commentators'Onissions V II. C ONCLUSION I. INTRODUCTION The problem of how to provide an effective legal preservation and protection regime for wrecks of historical or archaeological significance * 2009 Craig Forrest. Senior Lecturer; Deputy Director, Centre for Public, International and Comparative Law; Member, Marine and Shipping Law Unit, TC Beirne School of Law, University of Queensland, Australia. The research assistance of Emma Forbes is gratefully acknowledged.

3 348 TULANE MARITIME LA WJOURNAL [Vol. 33:347 has been a favourite topic for U.S. commentators, spawning numerous law review articles ever since Mel Fisher's Treasure Salvors Inc. began litigation over the rights acquired over the remains of the NEUSTRA SENORA DE ATOCHA and the SANTA MARGARITA.' Discoveries and contested rights over historic wrecks have not only involved competing salvors, original owners, and their insurers, but also state and federal governments. The latter includes a complex tripartite jurisdictional arrangement between the federal government and the individual state governments, exemplified in the Federal Abandoned Shipwreck Act of 1987 (ASA)' and the jurisdiction of the federal admiralty court. Given the range of issues raised in litigation involving historic wreck, particularly the complex U.S. constitutional issues, it is not surprising that many U.S. commentators have taken little cognisance of developments in other jurisdictions, and have taken a very particularly inward, and insular, view of the problem. Exemplifying this approach is a recent publication in this law journal by Rob Regan, 3 who argues for the development of an international regime protecting historic wreck, but which is based upon assumptions peculiar to the United States without recognising that these assumptions are not necessarily shared by other nations. Indeed, more problematic is the very assumption that U.S. principles are part of a jus gentium such that cognisance need not be 1. On the excavation of the wreck of the NUESTRA SE1RORA DE ATOCHA and SANTA MARGARITA, see R. DUNCAN MATHEWSON III, ARCHAEOLOGICAL TREASURE: THE SEARCH FOR THE NEUSTRA SEF4ORA DE ATOCHA (1983); R. DUNCAN MATHEWSON III, TREASURE OF THE ATOCHA (1986); JEDWiN SMITH, FATAL TREASURE (2003). For a discussion of the plethora of litigation following the discovery of these wrecks, see Tony Velocci, Treasure Hunting: Thers Gold in Them Thar Galleons, NATION'S Bus., Aug. 1980, at 58-62; Alexander Korthals-Altes, Sunken Spanish Treasures in Anglo-American Law, 11 BARCELONA, DERECHO COMERCIAL COMPARADO TRABAJOS EN HOMENAJE A FERRAN VALLS I TABERNER 3125 (1989); David A. Balinsky, Recent Development, Treasure Salvors, Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel, etc., Atocha, 5 BROOK. J. INT'L L. 178 (1979); Jeffrey E. Jones, Recent Decision, Admirlty-Possessory Right(s) in Abandoned Vessels, 19 VA. J. INT'L L. 473 (1979); 0. John Alpizar, Sovereign Rights and Sunken Treasure, 7 CA. U. L. REv. 75 (1977); John S. Butler, Recent Development, Admirlty Salvage R'hts-Sovereign Claims on the Outer Continental ShelfDo Not Extend to Abandoned Vessels, 7 GA. J. INT'L & COMP. L. 169 (1977); Bruce McDonald, Admiralty-Salvage-The United States Has Not Asserted Sovereign Prerogative over Abandoned Property on Outer Continental Shelf, 4 FLA. ST. U. L. REv. 561 (1976); James A. DeLanis, Jurisdiction-Continental Shelf-Abandoned Vessel Salvaged from the Surface of the United States Continental Shelf Beyond Territorial Waters Is Not Under Jurisdiction of United States Government, 9 VAND J. TRANSNAT'L L. 915 (1976); Alexander Korthals-Altes, Submarine Antiquities." A Legal Labyrinth, 4 SYRACUSE J. INT'L L. & COM. 77 (1976) U.S.C (2006). 3. Rob Regan, When Lost Liners Become Found: An Examination of the Effectiveness of Present Maritime Legal and Statutory Regimes for Protecting Historic Wrecks in International Waters with Some Proposals for Change, 29 TtlL. MAR. L.J. 313 (2005).

4 2009] HISTORIC WRECK SAL VA GE 349 taken of developments beyond the U.S. contiguous zone. 4 This is reflected particularly in the Nicholas J. Healy Lecture delivered by Judge Paul Niemeyer, 5 reflecting on the decisions to which he was party, concerning litigation over the salvage of the R.M.S. TITANIC. 6 Whilst this Article was prompted by Regan's article and Judge Niemeyer's lecture, and challenges many of the assumptions made by Regan and Judge Niemeyer, its aim is somewhat broader, seeking to consider U.S. historic shipwreck law and practise within a wider international perspective; something not often considered by U.S. commentators.! II. AN OUTSIDER'S VIEW OF U.S. HISTORIC SHIPWRECK SALVAGE LAW AND PRACTICE The U.S. treasure salvage industry is the largest, most technically advanced, and best funded in the world. Whilst some 2500 to 5000 historically significant wrecks are found in U.S. waters, the industry has a much greater hunting ground. U.S. nationals and U.S.-flagged vessels are the most active salvors in international waters, involved in recovery operations in all the world's oceans, and at the greatest depths.' The history of the treasure salvage industry, however, is plagued with 4. Id. Whilst Regan's article exemplified this approach, it is representative of a much wider approach taken by numerous other commentators, and this Article should not be seen merely as a criticism of Regan. 5. Paul V Niemeyer, Applying Jus Gentium to the Salvage of the R.MS. TITANIC in International Wates-The Nicholas J Healy Lecture, 36 J. MAR. L. & CoM. 431 (2005). 6. R.M.S. Titanic, Inc. v. Haver (Titanic 1), 171 F.3d 943, 1999 AMC 1330 (4th Cir. 1999). 7. A number of exceptions exist. See Timothy T. Stevens, The Abandoned Shipwreck Act of 1987 Finding the Proper Ballast for the States, 37 VILL. L. REv. 573 (1992); James A.R. Nafziger, The Evolving Role of Admiraly Courts in Litigation Related to Mtstoric Wreck, 44 HARV. INT'L L.J. 251 (2003) [hereinafter Nafriger, Evolving Role]; James A.R. Nafziger, The Titanic Revisited 30 J. MAR. L. & COM. 311 (1999); Matthew T. Boyer, Note, Is the Titanic Resting in the Right Hands? A Discussion of R.M.S. Titanic, Inc. in Federal District Court and the Fourth Circui4 9 WIDENER J. PUB. L. 379, (2000); Ole Varmer, United States of America, in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION 351 (Sarah Dromgoole ed., 2d ed. 2006). For a Canadian view that considers the new 2001 Convention on the Protection of the Underwater Cultural Heritage, see Liza J. Bowman, Oceans Apart over Sunken Ships.- Is the Underwater Cultural Heritage Convention Really Wrecking Admiralty Law 42 OSGOODE HALL L.J. 1 (2004). 8. H.R. REP. No (I), at 1 (1988); H.R. REP. No (11), at 2 (1988). 9. The U.S. company Odyssey Marine Exploration Inc., for example, is engaged in recovery operations in international waters in the western Mediterranean, off the coast of Gibraltar, in the Atlantic Ocean off the coast of Spain, and the eastern coast of the United States. See generally Odyssey Marine Exploration-Deep Ocean Shipwreck Experts Web Site, (select "Shipwrecks" tab and then hyperlinks to individual wrecks) (last visited Feb. 2, 2009).

5 350 TULANE MARITIME LA WJOURNAL [Vol. 33:347 examples of confrontations with the archaeological community and accusations of looting, destruction of low economic value cultural heritage items, and loss of archaeological data.'" This, it is argued, is primarily because U.S. federal admiralty courts apply the law of salvage" and the law of finds" to the recovery of historic wrecks, resulting in the economic value of the recovered material superseding its archaeological and historical value.' 3 The application of salvage law to historic wrecks, however, is equally vociferously defended." Salvage law (and the law of finds) is not, however, applied to historic wrecks by many other nations, and as such, the debate and conflict that arise in the United States do not necessarily reflect a common problem. While it might then be thought that outsiders would view the U.S. debate and litigation with only a passing interest, the scope of U.S. salvors' activities in international waters, often far from the United States but close to other nations' shorelines, and the resulting application of U.S. federal admiralty courts' constructive in rem jurisdictional reach over such sites makes U.S. historic shipwreck practise an international concern." This is especially true because many of the historic shipwrecks that interest U.S. treasure salvors are culturally important to many other nations, particularly the European nations of Spain, France, Portugal, the Netherlands, and the United Kingdom, and Asian nations such as China and Japan. The very recent salvage operations on the HMS SUSSEX and the "Black Swan" illustrate the difficulty other nations might have with the application of U.S. federal admiralty law to historic wrecks in inter- 10. Anne G. Giesecke, Management of Historical Shipwrecks in the 1980s, 12 J. FIELD ARCHAEOLOGY 108, 108 (1985). 11. Salvage may be defined as "the compensation allowed to persons by whose voluntary assistance, a ship at sea or her cargo, or both have been saved in whole or in part from impending sea peril; or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict or recapture." MARTIN J. NoRRis, THE LAW OF SALVAGE 2 (1958). 12. The law of finds awards title to abandoned property where the finder has the intent to acquire the abandoned property and takes it into his possession. R.M.S. Titanic, Inc. v. Haver (Titanic ), 171 F3d 943,961, 1999 AMC 1330, 1346 (4th Cir. 1999). 13. See D.K. Abbass, A MaineArchaeologistLooks at Treasure Salvage, 30 J. MAR. L. & CoM. 261 (1999); Gillian Hutchinson, Threats to Underwater Cultural Heritage: The Problem of UnprotectedArchaeological and Historical Sites, Wrecks and Objects Found at Sea, 20 MARINE POL'Y 287 (1996); Ole Varmer, The Case Against the "Salvage" of the Cultural Heritage, 30 J. MAR. L. & COM. 279 (1999); WA. Cockrell, A Preservationists Overview of the Legal and Ethical Controveisy Surrounding Treasure Hunting, in GORDON P WATrS, JR., UNDERWATER ARCHAEOLOGY: THE CHALLENGE BEFORE Us: THE PROCEEDINGS OF THE TWELFTH CONFERENCE ON UNDERWATER ARCHAEOLOGY 317 (1981). 14. See Geoffrey Brice Q.C., Salvage and the Underwater Cultural Heritage, 20 MARINE POL'Y 337 (1996); David R. Owen, Some Legal Troubles with Treasure: Jurisdiction and Salvage, 16 J. MAR. L. & COM. 139 (1985). 15. Titanic, 171 E3d at 967, 1999 AMCat 1355; see also Owen, supa note 14, at 139.

6 2009] HISTORIC WRECK SAL VA GE national waters. 6 The U.S. treasure salvage company Odyssey Marine Explorations Inc. currently conducts salvage operations in international waters around the world. 7 In 2001, Odyssey discovered what is believed to be the wreck of the HMS SUSSEX, an eighty-gun English warship lost during a severe storm in 1694 in deep water off the coast of Gibraltar.' 8 Historical research suggests a large cargo of money was carried by the SUSSEX when she sank in what are now international waters." Controversially, the U.K. government entered into a salvage agreement with the salvors, which included a provision allowing for the sharing of the proceeds of the sale of artefacts from the wreck. Reaction to the agreement from the archaeological community was immediate and forceful. The Council for British Archaeology issued a press release stating, "Through this deal the British Government are engaged in a joint venture selling antiquities to pay for an investigation of doubtful archaeological feasibility, while also lining its own pockets and those of a foreign company." 2 ' The decision to enter into this agreement, however, has been supported on the basis that the U.K. government was largely powerless to prevent the salvage, given that the wreck lies in international waters, that the salvage vessel and the salvors were foreign entities, and that, once artefacts were recovered from the site and landed in the United States, its federal admiralty law would govern the application of salvage law. 22 Whilst the U.S. federal admiralty courts would most likely recognise the ownership of the U.K. government, the court would apply U.S. salvage law to the recovery and award the salvor a large percentage of the finds, possibly making a salvage award in specie. 3 Whilst the U.K. government, as owner of the vessel, might oppose the recovery operation, its decision will not necessarily be recognised by the court. The court would instead consider whether the prohibition on salvage was reasonable, and only if it was, might the court 16. See generally Sarah Dromgoole, Murky Waters for Government Policy: The Case of a 17th Centuy British Warship and 10 Tonnes of Gold Coins, 28 MARINE POL'Y 189 (2003). 17. See Odyssey Marine Exploration-Deep-Ocean Shipwreck Experts Web Site, supra note IHMS Sussex Project Overview, (last visited Mar. 4, 2009). 19. Id. 20. Id (follow "landmark partnering agreement" hyperlink). For a detailed account of the agreement and ensuing debate, see Dromgoole, supra note 16, at Dromgoole, supra note 16, at Id. at Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 525 F Supp. 186, 198, 1983 AMC 966, (S.D. Fla. 1981).

7 352 TULANE MARITIME LA WJOURNAL [Vol. 33:347 refuse a salvage award." ' Under these circumstances, the U.K. government entered into an agreement with the salvors which, amongst other things, allows for the sale and sharing of the profits of all coin recovered from the site." "Black Swan" is Odyssey's code for a colonial period site in the Atlantic Ocean, believed to be off the coast of Spain "beyond the territorial waters or contiguous zone of any country." 26 The salvors have recovered over 500,000 silver coins weighing more than 17 tons, hundreds of gold coins, worked gold, and other artefacts from the site. 27 The salvors again invoked the federal admiralty courts' constructive in rem jurisdiction and the United States District Court for the Middle District of Florida has assumed jurisdiction over the site. 28 Whilst the wreck has not been formally identified by the salvors, they have said that "the recovery is not subject to sovereign immunity by any nation pursuant to the Law of the Sea Convention." 9 Nevertheless, the salvors have accepted that some claim might be made to the "Black Swan." 3 Conscious that the wreck might be a Spanish vessel, the Spanish government filed a claim stating that it did not intend to give up property rights to any Spanish property which might be on sites on which Odyssey filed admiralty arrests." The salvors, however, were granted order by the U.S. federal admiralty court protecting the confidentiality of the site location and assessments, which include detailed information about the archaeological and exploration activities conducted by the salvors." Whilst Spain may have a proprietary claim, the salvors have asserted their rights under U.S. admiralty law by stating: 24. International Convention on Salvage, art. 9, Apr. 28, 1989, S. TREATY Doc. No (1991) [hereinafter 1989 Salvage Convention]. 25. Dromgoole, supm note 16, at "Black Swad' Project Overview, (last visited Mar. 4, 2009). 27. Id. 28. Press Release, Odyssey Marine Exploration, Spain's Claim to One of Odyssey's Shipwreck Cases Dismissed (Apr. 3, 2008), "Black Swad' Project Overview, supra note Id 31. Press Release, Odyssey Marine Exploration, Odyssey Provides "Black Swad' Shipwreck Update (May 21, 2007), Press Release, Odyssey Marine Exploration, Odyssey Marine Exploration Motions Granted in Two Admiralty Cases (July 26, 2007), The salvors would have to have provided particularised pleadings in order to invoke the court's in rem jurisdiction. In Fathom Explomon, LLC v Unidenif7ed Shipwrecked Vessel or Vessels, 352 E Supp. 2d 1218, 2005 AMC 669 (S.D. Ala. 2005), the court required that "the complaint must contain factual allegations sufficiently particular to enable a claimant to begin investigation of the facts and to frame a responsive pleading."

8 2009] HISTORIC WRECK SAL VA GE Even if another entity is able to prove that it has an ownership interest in the shipwreck and/or cargo and that they had not legally abandoned the shipwreck, Odyssey would apply for a salvage award from the Admiralty Court. In cases such as this, salvors may be awarded up to 90% of the 33 recovery. One of the "Black Swan" wrecks was ultimately found to be a twentieth-century passenger liner and Spain's possible claim to the wreck was dismissed by the U.S. admiralty court." Counsel for Odyssey stated that "this shows that just because Spain files a claim against a particular wreck site [that] does not mean it has a valid basis, or as in this case, any evidence whatsoever to support that claim."" The difficulty in this approach is exemplified by Odyssey's "arrest" of two other wrecks in the same U.S. admiralty court, with a motion to keep all possible identification of the vessel confidential, including having the motion itself heard in camera. 3 ' This motion was dismissed, and Odyssey has been forced to reveal that a possible, though not conclusive, identification of the wreck is that it is the NUESTRA SEf4ORA DE LAS MERCEDES Y LAS ANIMAS, a Spanish vessel that had been assigned to transport mail, private passengers, and consignments of merchant goods and other cargoes at the time of its sinking in Where the salvor does all in its power to keep the identity of the vessel confidential, but where suspicion exists that it is a sovereign vessel, U.S. admiralty courts appear equivocal in their willingness to restrict salvage operations. It is therefore not surprising that some commentators view historic wrecks in international waters as at risk from the US. salvage industry and, particularly, from the U.S. admiralty law that appears to sustain it. III. SALVAGE LAW APPLIED TO HISTORIC WRECK A. US. Admiralty Courts' Constructive In Rem Jurisdction Any historic wreck found beyond the jurisdiction of a state by a U.S. salvor is likely to become the defendant in a U.S. federal district court, even if it is, for example, an English vessel that floundered off the 33. Press Release, Odyssey Marine Exploration, Odyssey Marine Exploration Welcomes Peru's Filing in "Black Swart' Case (Aug. 20,2008), Press Release, Odyssey Marine Exploration, Spain's Claim to One of Odyssey's Shipwreck Cases Dismissed (Apr. 3, 2008), Id. 36. Press Release, Odyssey Marine Exploration, Odyssey Marine Exploration Files Admiralty Claims on Two Shipwreck Sites (Nov. 7, 2008), "Black Swad' Project Overview, supra note 26.

9 354 TULANE MARITIME LA WJOURNAL [Vol. 33:347 coast of Spain 300 years ago. The international concern with the scope of the application of U.S. admiralty law to historic wreck rests on the admiralty courts' assertion of constructive in rem jurisdiction, exemplified in the litigation over the R.M.S. TITANIC. 38 The injunction ordered by the United States District Court for the Eastern District of Virginia" enjoined any person in the world from visiting the site of the wreck of the R.M.S. TITANIC, or photographing the wreck itself, or even entering a 168-square-mile zone above the wreck, which lies in international waters in the North Atlantic approximately 400 nautical miles offshore of Newfoundland, Canada." The assumption that a U.S. federal district court had jurisdiction over the wreck in international waters and, furthermore, could exercise that jurisdiction against the whole world by enjoining anyone in the world from entering an area of international waters was naturally an international concern.' The scope of this jurisdiction was, however, correctly rolled back by the United States Court of Appeals for the Fourth Circuit, 42 taking a more sensitive approach to international concerns and the exercise of jurisdiction in international waters. 3 Whilst recognising that the United States or, significantly, any other nation could exercise jurisdiction in international waters, the court recognised that this exercise was limited by the court's ability to enforce its judicial orders." This included its enforcement abilities not only in personam, but also in rem. 45 As such, whilst endorsing the exercise of constructive in rem jurisdiction, by which one part of the res within the court's jurisdiction is substituted for an entire res, there is an assumption that the res is legally an indivisible whole, and the court did acknowledge that its enforcement jurisdiction could not extend to all persons in the world, and could only be enforced 38. R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 9 E Supp. 2d 624, , 1998 AMC 2421, (E.D. Va. 1998). 39. Id. 40. Id. at 640, 1998 AMC at The wreck of the TITANIC may, in fact, lie on the juridical continental shelf of Canada. For a detailed discussion of the position of the wreck, see A. Ruffman, I. Townsend Gault & D. VanderZwaag, Lega Jurisdiction over the Titanic, 37 LIGHTHOUSE 23 (1998). 41. See, e.g., Paul Fletcher-Tomenius, Patrick J. O'Keefe & Michael Williams, Salvorin Possession: Friend or Foe to MarineArchaeology, 9 INT'L J. CULTURAL PRoP. 263 (2000). 42. R.M.S. Titanic, Inc. v. Haver (Titanic 1), 171 F.3d 943, , 1999 AMC 1330, 1358 (4th Cir. 1999). 43. For a detailed discussion of the R.M.S. TITANIC litigation, see Craig Forrest, Salvage Law and the Wreck of the Titanic, 1 LLOYD'S MAR. & CoM. L.Q. 1 (2000). 44. Titanic1, 171 F.3d at , 1999 AMC at Id at , 1999AMC at

10 2009] HISTORIC WRECK SAL VA GE against those subject to U.S. jurisdiction. 46 Whilst recognising this shared jurisdictional competence, in most cases the fact that the site lies in deep waters only accessible to the U.S. salvor necessarily means that a U.S. federal admiralty court will effectively have jurisdiction and will apply U.S. admiralty law. Both commentators and courts have appeared to mollify international concerns by asserting that the admiralty law that is applied in the North Atlantic or close to the shores of Spain is not that of a single nation (the United States), but the law of all nations, a jus genum, suggesting that the ultimate outcome would be no different had the matter been seized by a court in any other state." B. US. Salvage Law as Jus Gentium It is often stated that salvage law, as applied by U.S. admiralty courts, is part of the jusgentium or the "law of nations."' 8 In Lauritzen v Larsen, 9 for example, the court asserted: [Admiralty] courts of this and other commercial nations have generally deferred to a non-national or international maritime law of impressive maturity and universality. It has the force of law, not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations. Similarly, the court in Mason v The Ship Blairead' stated, "There seems to be no good reason why the question of salvage which is a question of the jus gentium, and depending upon general principles, should not be decided by the courts of admiralty of any civilized nation." 52 As a very general principle, salvage law may indeed be part of the jusgentium, but determining the precise content of this applicable law is rather more difficult. Reflecting on the Fourth Circuit's judgement in 46. Id. at , 1999 AMC at ("[B]ecause the exercise of in rem jurisdiction depends on the court's exercise of exclusive custody and control over the res, the limits of in rem jurisdiction, as traditionally understood, are defined by the effective limits of sovereignty."). For a detailed discussion on the development of the U.S. admiralty courts' quasi in rem jurisdiction, see Nafziger, Evolving Role, supra note 7, at Titanic, 171 E3d at , 1999 AMC at ("These conclusions reached by the district court about RMST's rights are consistent with the salvage law which is part of the jus gentium, and we expect that whether RMST had returned property from the TITANIC to an admiralty court in England or France or Canada, the court would, by applying the same principles, have reached the same conclusions."). 48. Id. at 960,966, 1999AMC at 1345, U.S. 571,582, 1953 AMC 1210, 1218 (1953). 50. Id. at , 1953 AMC at U.S. (2 Cranch) 240, 2002 AMC 1190 (1804). 52. Id. at249, 2002 AMC at 1197.

11 356 TULANE MARITIME LA WJOURNAL [Vol. 33:347 R.MS Titanic v Haver (Titanic1), Judge Niemeyer attempted to derive an understanding of the nature of the jus gentium in order to identify the actual rules of law to be applied. 3 By considering its origins as a Roman law concept that attempted to resolve disputes between Roman citizens and non-citizens that were governed by different systems of law, Judge Niemeyer concluded that "Roman judges discerned a common law based on 'right reason.' And because the principles of a common law were simple and reasonable, they were thought to be universal and therefore applicable to all people... In short, the Roman jus gentum was a universal common law based on right reason...."" Judge Niemeyer then concluded that the jus gentium was "a universal law applicable to all nations, not the law of a single sovereign" and became "essentially a worldwide common law, now defined as the 'law of Nations.'... Because this common law could not be found in the law of any one nation, the court in Titanic Iturned to where it considered general principles might be found, beginning with the ancient Rhodian code of 900 BCE, and noting that in very general terms, the principles of salvage law indeed have survived and are still applied by courts today. 56 This, Judge Niemeyer concluded, was a sufficient basis for concluding that in this case, the Fourth Circuit was "on apparently sound ground in applying salvage law as part of the jus gentium."" This assumption that the general principles of salvage law, albeit of considerable antiquity, as applied to historic wreck are part of the jus geninum is challenged by Professor Nafziger, who argues that "there is little evidence that the law of salvage and finds has been accepted by more than a few common law systems'" and as such, "there is no general maritime law in the international sense, let alone ajusgenum, to support the law of salvage and finds." 58 The difficulty with these competing views is that while the very general principles of the concept of salvage might have been accepted by a number of states over a considerable period of time, the content of the actual rules required to be applied differ substantially between states. Recourse to an ancient set of general principles, as applied by one state (such as the United States), cannot be the basis for the jus gentium E3d at 943, 1999AMC at Niemeyer, supra note 5, at Id. at TitanicI, 171 E3d at 960, , 1999 AMC at 1344, Niemeyer, supra note 5, at Nafiger, Evolving Role, supra note 7, at 261.

12 2009] HISTORIC WRECK SAL VA GE 357 The recognition of very general principles underpinning the concept of salvage as jus gentum can hardly be assimilated with the application of very specific rules to address a particular salvage issue, such as the salvage of historic wrecks. The degree of abstraction of the salvage law is then the basis of the distinction between the approaches of Professor Nafziger 9 and Judge Niemeyer.' Professor Nafziger argues that "even if there were a true jus gentium of salvage and finds applicable to wreck in general, the customary law of salvage cannot easily be applied to historic wreck" and that "[t]he advent of major treasure salvage is so recent that there simply is no applicable custom, let alone a jus gentium, that addresses the unique phenomenon of underwater cultural heritage in any coherent way." 1 For Professor Nafziger, the content of thejusgentium is to be found in the more concise applicable rules to an actual problem, rather than broad generalisations as to principles." 2 Judge Niemeyer, however, argues that the recognition that historic wreck has some historic importance or archaeological significance such as to alter the content of salvage law has yet to gain sufficient international recognition to alter the jus gentium, and thus the default position returns to those laws, which appear to be stuck somewhere in the middle ages, as previously applied. 3 Judge Niemeyer states: Salvage law was the law of virtually the entire western world during the Roman Empire, and its principles continued unchanged through the middle ages and into modem times. Moreover, the Supreme Court has unequivocally accepted salvage law in its original formulation as part of the jus gentium that United States courts apply It would seem that this pedigree would be enough for today, and any further exception might be reserved only for the most theoretical of discussions. 6 Judge Niemeyer concludes that it is therefore this salvage law which ought to be applied on the basis, effectively, that it has always been so applied in the United States." The salvage law that he identifies-still based, it appears, on the ancient Rhodian maritime code-is, however, quite inapplicable to most modem day salvage operations.' They have evolved in a number of respects to address changing values. For example, general salvage principles have evolved so as to emphasise the 59. Id. 60. Niemeyer, supra note 5, at Nafziger, Evolving Role, supra note 7, at Id at 264, Niemeyer, supa note 5, at Id. 65. Id at Id.

13 358 TULANE MARITIME LAWJOURNAL [Vol. 33:347 protection of the marine environment rather than solely the saving of property, now contained in the 1989 Salvage Convention and usually contractually agreed by salvors in the Lloyd's Open Form."' Similarly, slaves are no longer the subject of salvage. 8 The same might be said for the recognition of the archaeological or historical value of long lost wrecks. Furthermore, it appears that for Judge Niemeyer and the Fourth Circuit, the rules that make up salvage law as applied to historic wreck in international waters are without cognisance of a changing world. While recognising that the jus gentum is not static and is capable of being expanded, Judge Niemeyer argues that no one nation can do this; yet he appears to rely solely on the law of the United States in determining the content of the jus gentium, with little recognition that it might have evolved outside the United States. In Titanic 1i, Judge Niemeyer wrote "[t]he general maritime law of nations includes the law of finds and a law of salvage," 6 which is followed by consideration of a number of U.S. cases, without any reference to anything outside the United States." Whilst recognising that this jus gentiun might evolve through states adopting positive law or treaties to address the application of salvage law to historic wreck, Judge Niemeyer makes no attempt to determine whether this might have occurred outside the United States. One would expect that the identification of the rules of law that might then be said to constitute a common law of nations, established by universal consent," ought to require at least some cognisance of the views of other nations, as reflected by their own laws and practises. Remarkably, however, Judge Niemeyer simply concluded, reflecting his judgement in Titanic I, that because U.S. admiralty courts have in the past applied salvage law to historic wreck, this must reflect the application of jus gentium." That Salvage Convention, supr note 24, arts SeegenerallyFRANcis D. ROSE, KENNEY AND ROSE: THE LAW OF SALVAGE ch. 5 (6th ed. 2002). 68. ROSE, supm note 67, at R.M.S. Titanic, Inc. v. Haver (Titanic b), 171 F.3d 943, 961, 1999 AMC 1330, 1346 (4th Cir. 1999). This assumption that the law of finds is part of the jus gentium appears to have been retracted by Judge Niemeyer in the later case involving R.M.S. TITANIC in which he stated: The law of salvage, which has been applied to this case until now, has a favored, indeed a dignified, place within the law of nations or the jus gentium. The law of finds, however, is a disfavored common-law doctrine rarely applied to wrecks and then only under limited circumstance. R.M.S. Titanic, Inc. v. The Wrecked & Abandoned Vessel (Titanic 1&9, 435 E3d 521, 531, 2006 AMC 305,324 (4th Cir. 2006). 70. TitanicI, 171 F.3d at 961, 1999AMC at Niemeyer, supra note 5, at Titanic II, 435 F.3d at 536, 2006 AMC at 340. For a critical discussion of the application of the law of salvage to the exclusion of the law of finds in this decisions, see Justin S. DuClos, A Conceptual Wreck: Salvaging the Law offind 38. MAR. L. & COM. 25 (2007).

14 20091 HISTORIC WRECK SAL VA GE many other nations might have changed the application of salvage law to historic wreck in light of maritime archaeology's development as a scientific discipline should, Judge Niemeyer concludes, amount to criticism of those nations' decisions "and not... the recognition of salvage law as part of thejusgentium."" For Judge Niemeyer, for salvage law to take into account historic or archaeological considerations, the jus gentium "would have to be expanded from its current formulation" 7 through the adoption of treaties or by manifestation of "their consent to an expansion of the jus genium." ' How the latter is to occur is not made clear in either Judge Niemeyer's article or in his judgements in the R.MS. Titanic litigation, but it does appear that he has yet to be swayed by consideration of other states' approaches or international developments, rather than the past practise of U.S. federal admiralty courts. Respectfully, I submit that developments in other states, in international fora and conventions, and indeed, in U.S. legislation and treasure salvage litigation, suggest that the specific rules applicable to historic wreck as applied by Judge Niemeyer do not reflect any "common law developed from the consent of all nations."" IV EQUIVOCAL U.S. LAW AND PRACTISE A. The Application ofsalvage Law M US. Litigaton According to Article 1H, Section 2, of the United States Constitution, the federal courts have exclusive admiralty jurisdiction, which includes salvage of wrecked vessels.7 This, however, is not entirely uncontroversial, and in Zych v Unidenfie Wrecked & Abandoned Vessel Believed To Be the Seabira7 the court considered it a close question as to whether abandoned shipwreck litigation was ever "properly, firmly within the scope of admiralty jurisdiction." Niemeyer, supra note 5, at Id 75. Id. at Id. at Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059, , 1988 AMC 1109, (1 st Cir. 1987); Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 E Supp. 540, 548, 1983 AMC 1018, (S.D. Fla. 1982); N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, (1919); see alsothe George W. Elder, 206 E 268 (9th Cir. 1913) E2d 525, 1992 AMC 532 (7th Cir. 1991). 79. Id. at 531, 1992 AMC at 532; Sabrina L. McLaughlin, Roots, Relics and Recovery: What Wnt Wrong with the Abandoned Shipwreck Act of COLUM.-VLA J.L. & ARTS 149, 161 n.63 (1995).

15 360 TULANE MARITIME LAWJOURNAL [Vol. 33:347 Nevertheless, under this constitutional power, U.S. admiralty courts have assumed jurisdiction and applied salvage law to a variety of circumstances and subjects, including aeroplanes," fishing nets adrift at sea, 8 ' floating logs, 82 money found on a floating corpse, " and even slaves,' which were considered cargo aboard a capsized vessel." Wrecked vessels have been considered maritime property and are susceptible to salvage law." While this is true for the salvage of contemporary wrecks, it is not necessarily so for historic wrecks. The salvage of wrecks from antiquity was relatively unusual until the midnineteenth century,' and arguably only really became commonplace as written in the late 1940s with the invention of scuba." With this new technology, a number of sport divers in the United States made some valuable finds, and a number took up the search for and recovery of historic wrecks as a profession." These included Kip Wagner and Mel Fisher, who made spectacular finds of gold and silver, particularly from the 1715 Spanish Plate Fleets wrecked off the coast of Florida.' However, no sooner had these finds been made than the first protracted legal battles began.' The course of U.S. treasure salvage jurisprudence has not, however, been smooth sailing and evinces a number of 80. Lambros Seaplane Base, Inc. v. The Batory, 215 E2d 228, 233, 1954 AMC 1789, 1795 (2d Cir. 1954). 81. Tidewater Salvage, Inc. v. Weyerhaeuser Co., 633 F2d 1304, 1305 (9th Cir. 1980). 82. Medina v. One Nylon Purse Seine, 259 F Supp. 769,770 (S.D. Cal. 1966). 83. Broere v. Two Thousand One Hundred Thirty Three Dollars, 72 F Supp. 115, 118, 1947 AMC 1523, (E.D.N.Y 1947). 84. Jerbyv. One Hundred & Ninety-Four Slaves, 13 F Cas. 550,551 (S.D.C. 1806). 85. The rescue of barges, dry docks, and rafts have not been considered to be the class of property to which salvage law will apply. See Cope v. Vallete Dry-Dock Co., 119 U.S 625, , 2002 AMC 2694, (1887); see also McLaughlin, supra note 79, at GERARD J. MANGONE, UNITED STATES ADMIRALTY LAW 203 (1997). 87. The earliest example of the recovery of wreck for historical interest dates back to 1446 when Leon Battista Alberti, and later, his successor, Francesco Demarchi, recovered material from two ancient Roman vessels lying at the bottom of Lake Nemi in Italy for their historical interest. JEAN-YVEs BLOT, UNDERWATER ARCHAEOLOGY: EXPLORING THE WORLD BENEATH THE SEA 14 (1995). However, it was only with the invention of brass diving bells and helmets in the early 1800s that historic wreck were investigated, such as the Dean brothers' recovery of artefacts and artillery pieces from the wreck of the MARY ROSE, King Henry XIII's flagship which had sunk off Portsmouth in ALEXANDER McKEE, How WE FOUND THE MARY ROSE (1982). They were entitled to keep part of the recovered material, which included a number of intact bottles, iron and granite shot and warrior's bows, which they sold at auction in Id 88. Craig J.S. Forrest, Has the Application of Salvage Law to Underwater Cultural Heitage Become a Thing ofthe Past 34 J. MAR. L. & COM. 309 (2003). 89. Id. 90. Kip WAGNER, PIECES OF EIGHT: RECOVERING THE RICHES OF A LOST SPANISH TREASURE FLEET ch. 1 (1966). 91. Id. ch. 12.

16 2009] HISTORIC WRECK SAL VA GE contradictions which undermine any contention of uniformity in the body of salvage law applied. Two central principles of salvage law have been the subject of considerable disagreement: the extent to which a sunken historic wreck is in marine peril, and the measure of the salvor's preservation of the wreck's archaeological or historic value included as a factor in the ascertainment of the salvage award. As the existence of a state of marine peril is a requirement for the application of salvage law, some courts have manipulated the definition, with some considerable expansions, retaining admiralty jurisdiction over the issue." Other decisions evince unease with the application of an expansive definition of marine peril. 3 The expansion of its definition amounts to the creation of a legal fiction, " discerned judicially solely in order that salvage law may be applied to historic wreck. There may be a policy consideration behind this-that is, to encourage finds cases to be filed in federal admiralty courts, particularly where the find is in international waters." That U.S. courts have not relied solely on general principles of salvage law, a jus gentium derived from antiquity, in historic wreck 92. See, e.g., Platoro Ltd. v. Unidentified Remains of a Vessel, 614 F.2d 1051, , 1981 AMC 1097, (5th Cir. 1980). The court held that as a matter of law, marine peril will exist where a ship's location was unknown. Id. The physical preservation of the artifacts was therefore not a consideration, Id In Treasure Salvors, Inc. v Unidentified Wrecked & Abandoned Sailing Vessel, 569 F2d 330, 337, 1978 AMC 1404, (5th Cir. 1978), the court held that "marine peril includes more than the threat of storm, fire, or piracy to a vessel in navigation." The court went on to state that if the vessel were lost, "[e]ven after discovery of the vessel's location it is still in peril of being lost through the actions of the elements." Id Similarly, in Cobb Coin Co. v Unidentified Wrecked &Abandoned Sailing Vessel, 549 E Supp. 540, 557, 1983 AMC 1018, 1040 (S.D. Fla. 1982), the court stated that "[b]ecause the defendant vessel was still in the peril of being lost through the action of the elements or of pirates and was not being successfully salved when the plaintiff undertook its salvage operation, it was subject to a 'marine peril' for purposes of the plaintiff's salvage claim." See also Wiggins v Tons, More or Less, of Italian Marble (The Clythia), 186 E Supp. 452, 1960 AMC 1774 (E.D. Va. 1960); Thompson v. One Anchor & Two Anchor Chains, 221 F 770 (WD. Wis. 1915); Eads v. Brazelton, 22 Ark. 499 (1861). This footnote was adapted from Forrest, supranote 88, at 330 n In Subaqueous Exploration & Archaeology Ltd. v Unidentified Wrecked & Abandoned Vessel, 577 E Supp. 597, 611, 1984 AMC 913, 932 (D. Md. 1983), the court held that "marine antiquities which have been undisturbed for centuries" are not proper subjects of salvage because they are not in marine peril. The courts are not alone in their disagreement on the meaning of marine peril as applied to historic wreck. Commentators on their case decisions are divided also. Both Brice and Owen disagree with the rulings in Subaqueous Exploration and Klein to the effect that wrecks are no longer in danger and that salvage law should not therefore apply. See Brice, supra note 14, at 339; Owen, supra note 14, at 145. On the other hand, Stevens argues that historic shipwrecks are not in marine peril and therefore should not be the subject of salvage law. See Stevens, supra note 7, at Nafziger, Evolving Role, supra note 7, at Adam Lawrence, State Antiquity Laws and Adnmly Salvage: Protecting Our CulturalResources, 32 MIAMI L. REv. 291 (1977).

17 362 TULANEMARITIMELAWJOURNAL [Vol. 33:347 litigation is evident in the extent to which the salvor's preservation of the archaeological or historic value of the historic wreck is taken into account when determination of the salvage award is made." It has been argued that, as a system of law, salvage law is not rigid, but capable of adapting to new situations, and able to take into account the need to preserve the archaeological value of historic wreck. 97 Thus, while the preservation of a wreck's archaeological value is not a requirement of the law of salvage, it can be a factor in the calculation of a suitable salvage award. "8 U.S. admiralty courts have, to varying degrees, begun to take cognisance of the archaeological value of historic wreck." However, this recognition has extended only to the determination of the salvage award,' and the application of salvage law to historic wreck continues to promote the policy of recovery without requiring the preservation of archaeological or historical value as a substantive element of the criteria of success. This application of salvage law, which considers, to varying degrees, the archaeological and historic value of the wreck, is a new phenomenon, prompting Professor Nafziger to conclude that as a body of law it exhibits no maturity or universality. It is "so recent that there simply is no applicable custom, let alone ajusgentiwn. ' ' 1 With little regard to decisions or practises outside the United States, the development of U.S. treasure salvage litigation has hardly conformed to a set of unequivocal rules capable of forming ajusgentium. Professor Nafziger, reflecting on this development, concluded, quite accurately, that "[f]ederal courts, masquerading as agents of an international maritime 96. Cobb Coin, 549 E Supp. at 559,1983 AMC at David J. Bederman, The UNESCO Drml Convention on Underwater Cultural Heritage.- A Critique and Counter-Proposal, 30 J. MAR. L. & COM. 331 (1999). 98. The 1989 Salvage Convention, supra note 24, article 13, concerns the calculation of a salvage award, and can be interpreted to require the salvor to protect the historical and archaeological integrity of historic wreck. Article 13(1)(f) requires the court to take into account the time and money spent by the salvor in undertaking the salvage. Id. In the case of the excavation of historic wreck, the court should therefore take into account the time and money spent on archival research as well as the time, often lengthy, needed to excavate according to professional archaeological standards. This interpretation would discourage salvors from excavating historic wreck as quickly as possible, thereby destroying much of their archaeological integrity. 99. Forrest, supa note 88, at 335 & n The salvage reward is for benefits actually conferred, not for a service attempted. [The Sabine, 101 U.S. 384, 385 (1879) (finding success is necessary).] If, therefore, a salvor of historic wreck is able to preserve its archaeological value, the benefit to the general public and scholarly activity will be increased, justifying more than would have been awarded had the salvor not preserved these attributes. Id At 336 n Nafriger, Evolving Role, supra note 7, at 261.

18 2009] HISTORIC WRECK SAL VA GE custom, simply applied the common law of salvage and finds"'" and "admiralty courts sometimes took foreign and international interests into account, but they either ignored international law altogether or adopted a pseudo-international law to vindicate national interest."' 3 B. Salvage Law and US. Statutes That the law of nations dictates the application of salvage law to historic wreck is not supported by congressional or state government enactments. With the adoption of the ASA in 1987, salvage law and the law of finds was made inapplicable to a section of historic wreck found in waters within three miles of the U.S. coast.'" By the terms of the ASA, the United States asserts title to any abandoned shipwreck that is (1) embedded' 5 in submerged lands of a state, (2) embedded in coralline formations protected by a state on submerged lands of a state, or (3) on submerged lands of a state and is included in or determined eligible for inclusion in the National Register of Historic Places.' 6 The United States then transfers title to these shipwrecks to the state on whose submerged lands the abandoned shipwrecks lie.' 7 The original Abandoned Shipwreck Bill was "designed to address conflicting state and Federal court decisions which have created confusion over the ownership and control of abandoned shipwrecks located within state territorial waters."' ' At the same time, the Bill' 9 was a preservationist measure designed to protect the archaeological or historical integrity of the wreck." ' Furthermore, the Report of the House Committee on Merchant 102. Id. at Id. at U.S.C. 2106(a) (2006) states that "the law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies." For more detail on the legislative history of the ASA, see Anne G. Giesecke, The Abandoned Shipwreck Act Through the Eyes of Its Drafter, 30 J. MAR. L. & CoM. 167 (1999); Giesecke, supra note 10, at ; Stevens, supra note 7, at ; McLaughlin, supra note 79, at 181; David R. Owen, The Abandoned Shipwirck Act of 1987: Goodbye to Salvage in the Tenitoial Sea; 19 J. MAR. L. & COM 499 (1988) For a discussion on the interpretation of the meaning of embedded, see Klein v Unidentitie4 Wrecked& Abandoned Sailing Vessel, 568 E Supp. 1562, 1984 AMC 1897 (S.D. Fla. 1983), affdi 758 E2d 1511, 1985 AMC 2970 (11 th Cir. 1985); Chance v. Certain Artefacts Found & Salvaged from the Nashville, 606 E Supp. 801, , 1985 AMC 609, (S.D. Ga. 1984), affo 775 F2d 302 (1 1th Cir. 1985) U.S.C. 2105(a). For a discussion on the difficulties in the interpretation of this section, see Stevens, supra note 7, at U.S.C. 2105(c) For views of Representatives Coble, Davis, Fields, Herger, Lent, and Shumway, see Stevens, supa note 7, at 579 n H.R. 1195, 96th Cong. 1st Sess. (1987) McLaughlin, supra note 79, at 181.

19 364 TULANE MARJTIME LAWJOURNAL [Vol. 33:347 Marine and Fisheries found that shipwrecks targeted by the Act were not "in marine peril, necessitating their recovery by salvage companies."" As such, "Congress feared that shipwreck salvors were akin to plunderers, and that maritime law could not save the ships from ruin."" '2 The premise of the ASA is therefore that traditional admiralty law of salvage and finds is inappropriate and insufficient to protect historic wrecks and thus is not applied to historic wrecks subject to the Act. V A COMPARATIVE NATIONAL PERSPECTIVE Regan made an assumption that absent a "comprehensive international convention detailing specific protection, coverage, jurisdiction, and sanctions enshrined in member countries' legislation, the courts are left to their own devices to arbitrate salvage and wreck ownership issues."" '3 Whilst true for a small number of countries such as the United States, where issues surrounding the recovery of historic wrecks are often left to the court system to arbitrate, this is not the case in many other states in the world. National approaches to the law that applies to wrecks of a historical and archaeological character evinces divergent principles, many of which are not grounded in the law of salvage or the law of finds. In those states that exhibit a similar common law legal system to that of the United States, and apply, in a very broad sense, a similar salvage regime, the actual rules applied to historic wreck differ quite fundamentally. So much so, that in these states, including Canada, Australia, New Zealand, South Africa, and the United Kingdom, little if any litigation has arisen attempting to apply salvage law to historic wreck. Nevertheless, a few cases from these jurisdictions have evinced a very different approach to that taken by some U.S. admiralty courts. For example, in the Canadian case, Her Majesty The Queen in Right of Ontario v Mar-Dive Corp. the court held that a wreck embedded in the bottom of Lake Erie was not in marine peril simply by being there. Importantly, the court went on to note that the wreck might, however, be in danger from the salvage activity itself, especially from the unskilled recovery of artefacts."' A somewhat broader perspective was taken by the High Court of Ireland in In re La Lavia in which the court concluded 111. H.R. REP. No (11), at 8 (1988); see also Roberto Iraola, The Abandoned Shi'pwreckAct of"1987,25 WHITrhER L. REV. 787, 796 (2004) McLaughlin, supm note 79, at Regan, supra note 3, at Her Majesty The Queen in Right of Ontario v. Mar-Dive Corp., 1997 AMC 1000, (Ont. Ct. 1997); see also Fletcher-Tomenius et al., supa note 41, at 263.

20 20091 HISTORIC WRECK SAL VA GE that the wreck of three Spanish galleons sunk in 1588 "passed out of the realm of commercial maritime law and into archaeological law long before they were found as Streedagh in 1985."" ' Similarly, the Singapore High Court in Simon v Taylo 1 evinced a very different approach to the U.S. practice of applying salvage law to historic wreck by ruling that it would not sanction the recovery of historic wreck purely for commercial interests, and denying the salvors' claims. "7 In a rare historic shipwreck court action in Finland, the Finnish court also rejected the application of salvage law to the recovery of the VROUW MARIA, a Dutch merchant vessel that sank in 1771, on a number of bases, including that the wreck was not in danger and therefore not subject to salvage. The actual regimes that apply in most of the common law states regulate the recovery of historic wrecks in a way which eliminates traditional salvage law. Australia, for example, provides in the Historic Shipwrecks Act 1976 for a protective regime for all wrecks over 75 years old, which excludes the application of salvage law. " 9 A similar regime is applied in South Africa, where a permit is required for any operation relating to a protected site of a historic wreck over 60 years old, ' and in Ireland, where any historic wreck over 100 years old is protected. 2 ' Both South Africa and Ireland put historic wreck beyond the reach of traditional salvage law. The non-application of salvage law is pervasive beyond common law states, with a large number of European, Scandinavian, and Asian states applying a regulated regime that provides protection for historic wrecks without recourse to salvage law that the United States applies under the guise ofjusgentium." It is also the case 115. [ I.R. 413 (H. Ct. 1994) (Ir.) (Lexis, Irish Reported and Unreported Cases) [1975] 2 Lloyd's Rep. 338 (Singapore High Ct. 1974); see also Nafziger, Evolving Role, supra note 7, at It is important to note that the Simon court did not foreclose the application of salvage law to historical wreck in all circumstances; rather, the court held that under the facts of the immediate case, the test for salvage was not met. See Simon, [1975] 2 Lloyd's Rep. at Maija Matikka, Filana in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES 1N LIGHT OF THE UNESCO CONVENTION, supa note 7, at Bill Jeffries, Austraia, in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION, supm note 7, at 1, Craig Forrest, South Africa, in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION, supra note 7, at Nessa O'Conner, Irelanai in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION, supra note 7, at These include Finland, Norway, France, Greece, the Netherlands, Spain, China and Sri Lanka. See THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL

21 366 TULANE MARJTIME LA WJOURAAL [Vol. 33:347 that a large number of states do not apply the law of finds, and instead vest ownership of abandoned historic wrecks in the state.' 23 Reviewing the protection regimes of a large number of states, Dromgoole concluded: "[T]here is now broad acceptance of the principle that salvage law is inappropriate for dealing with cultural material.' ' 4 It is unfortunate that Regan's failure to consider a comprehensive comparative national perspective resulted in a number of untenable conclusions. Regan appears to conclude that Commonwealth countries' retention of the sovereign prerogative notion results in "ownership interest by the Crown in all historic wrecks once they are flagged under that state, whether lying in international waters or in territorial waters belonging to a coastal state.""' 5 Only two Commonwealth countries are actually discussed by Regan: England and Canada.' 26 At least for England, this is simply not the case. The U.K. Merchant Shipping Act provides that the Crown has title to all unclaimed wrecks found in the United Kingdom or in its waters. 7 The exercise of the Crown's sovereign prerogative is based on the wreck being within its territory, and is not based upon the registration of the vessel. 8 In Pierce v Bemis,' 29 the U.K. court had to consider the Crown's right of ownership to material recovered from the wreck of the LUSITANIA, a British-flagged vessel lying off the coast of Ireland, but subsequently brought into the United Kingdom after being recovered from the wreck. The court concluded that the Crown had no such right to wrecks lying outside the United Kingdom's waters, even if subsequently brought into the United Kingdom.' 3 The flag of the vessel was therefore not a consideration in determining the Crown's rights. Referring presumably to the United Kingdom and Canada, Regan further concluded that "[t]hese countries seem to provide little or no protection to wrecks of historical or cultural PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION, suprd note 7; LYNDEL V PROTr, FINISHING THE INTERRUPTED VOYAGE: PAPERS OF THE UNESCO ASIA-PACIFIC WORKSHOP ON THE 2001 CONVENTION ON THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE (2006) These include Finland, France, Greece, China, South Africa, Norway, and Sweden. See THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OFTHE UNESCO CONVENTION, supra note 7, at 130, 247; PROTT, supra note THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION, supra note 7, at xxxi Regan, supra note 3, at Id 127. Merchant Shipping Act, 1995, c. 21, 241 (Eng.), available at uk/acts/actsl995/ukpga _enl Id [1986] Q.B. 384 (1985) Id

22 2009] HISTORIC WRECK SAL VA GE significance."' 3 ' This is not the case for the United Kingdom, which has provisions in both the Protection of Wrecks Act 1973 and the Protection of Military Remains Act 1986 for the protection of historic wrecks.' 32 These legislative measures were necessary to provide a protection regime notwithstanding the Crown's prerogative to unclaimed wrecks. VI. AN INTERNATIONAL PERSPECTIVE A. The United Natons Convention on the Law of the Sea The 1982 United Nations Convention on the Law of the Sea' 3 addresses, tangentially, the issue of historic wreck in two articles, articles 149 and 303.' 34 Contrary to the assertion of Regan, the two articles were not designed to deal with maritime property in a broad sense, including cargo, in article 149, and "the specific matter of sunken vessels" in article 303."' The fact that there are two articles on the issue of historic wreck is due to the structure of negotiations and drafting by committees and, more importantly, the relative unimportance of the subject given the myriad issues being dealt with. As such, the Conference did not set out, as Regan suggests, explicitly with the intent to "augment and clarify the general principles of customary maritime law and clearly define the rights and obligations of member states with respect to historic wrecks."' 36 It is evident that in an attempt to reach consensus and produce a convention, the substantive provisions of articles 149 and 303 were left vague and ambiguous, which is really not surprising as their drafting was inconsequential compared to the major issues of the Third United Nations Conference on the Law of the Sea.' Yet, these articles 131. Regan, supra note 3, at Sarah Drorngoole, United ingdom, in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION, supra note 7, at 313; see also Michael Williams, War Graves and Salvage.- Murky Waters, 5 INT'L MAR. L (2000); Sarah Dromgoole, Military Remains on and Around the Coast of the United Kingdom, 2 INT'LJ. MARINE&COASTALL (1996) United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, U.N. Doc. A/CONE 62/122 (1982), repintedin 21 I.L.M [hereinafter UNCLOS] Id. arts. 149, Regan, supm note 3, at Id 137. For a more detailed discussion on UNCLOS articles 149 and 303 see ANASTASIA STRATI, THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: AN EMERGING OBJECTIVE OF THE CONTEMPORARY LAW OF THE SEA (1995); Luigi Migliorino, In Situ Protection ofthe Underwater Cultual Heritage Under International Treaties and National Legislation, 10 INT'L J. MARNE & COASTAL L. 486 (1995); Cynthia Furrer Newton, Finders Keepers? The Titanic and the 1982 Law of the Sea Convention, 10 HASTINGS INT'L & COmp. L. REv. 178 (1986); Bernard H. Oxman, Marine Archaeology and the International Law of the Sea, 12 COLUM-VLA J. L. & ARTS 362 (1988); Patrick J. O'Keefe & James A.R. Naffiger, The Drafi Convention on the Protection

23 368 TULANE MARITIME LA WJOURNAL [Vol. 33:347 do represent substantive international law applicable to historic wrecks and contain general applicable principles.' 38 First, it is evident that states do have a duty to protect historic wrecks in various maritime zones beyond coastal state jurisdiction. Secondly, this duty is undertaken for the benefit of humankind,' 39 and thirdly, in fulfilling these duties, states are duty bound to co-operate. Article 149 reads: All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin." It has been very difficult to reach consensus on the interpretation of this article, and it is unfortunate that though these principles were expressed, their substantive meanings were left vague and ambiguous.' 4 ' An important interpretational problem, for example, occurs as the convention does not specify the manner in which objects of an archaeological and historical nature are to be "preserved or disposed of," nor who will provide the necessary funding for their preservation or disposal."' Similarly, preservation may mean in situ preservation or placement in a museum; the latter would obviously require excavation and recovery.'1 3 The final interpretative problem lies in the "preferential rights" to be given to a number of alternative states as it is difficult to of the Underwater Cultural Heritage, 25 OCEAN DEV. & INT'L L. 391 (1994); L. Caflish, Submarine Antiquities and the International Law of the Sea, 13 NETHERLANDS YB. INT'L L. 3 (1982); Luigi Migliorino, SubmafineAntiquities and the Law of the Sea, 4 MARINE POL'v REP. 4 (1982); Janet Blake, The Protection of the Underwater Cultural Heritage, 45 INT'L & COMP. L.Q (1996); Anthony Clark Arend, Archaeological and Historical Objects: The Intemational Legal Implications of UNCLOS III, 22 VA. J. INT'L L. 799 (1982); David R. Watters, The Law of the Sea Treaty and Underwater Cultural Resources, 484 AM. ANTIQUITY 812 (1983); Bruce E. Alexander, Treasure Salvage Beyond the Territorial Sea." An Assessment and Recommendations, 20 J. MAR. L. & COM. 7-8 (1989) STRATI, supra note 137, at , includes a summary of the positive and negative factors of the inclusion of UNCLOS articles 149 and On the concept of the common heritage of humankind, see KEMAL BASLAR, THE CONCEPT OF THE COMMON HERITAGE OF MANKIND IN INTERNATIONAL LAW (1998) UNCLOS, supra note 133, art See INT'L LAW ASS'N, REPORT OF THE INTERNATIONAL COMM=rEE ON CULTURAL HERITAGE LAW (1990). The ILA International Committee of Cultural Heritage Law took a broad interpretation of the duty to preserve UCH as including several activities, such as "maintenance of known sites and monuments, excavation of archaeological sites in accordance with accepted standards, conservation and display of material excavated, and dissemination of information obtained." Id at Strati, supranote 137, at See also Migliorino, supra note 137, at ; LYNDEL V PROTr & PJ. O'KEEFE, LAW AND THE CULTURAL HERITAGE: VOLUME 1, DisCOvERY AND EXCAVATION 180 (1984).

24 2009] HISTORIC WRECK SAL VA GE determine which of the alternative states should have preferential rights.'" The alternative terms used, being the "State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin" were never intended to be used as alternatives in the article, but were alternative negotiating terms which, inexplicably, were left in the article and never actually addressed by the Conference.' 5 The inclusion of article 149 in Part XI of UNCLOS, which deals essentially with the deep seabed mining regime, is in itself an anomaly and has led one commentator to question whether its inclusion was a political tactic employed by so-called "States of origin" that wished to advance the recognition of general cultural heritage rights in other maritime zones.'" Whatever the reason, it may prove to have been insightful as more historic wrecks are being discovered in the deep seabed than might otherwise have been thought probable when the convention was concluded. Whilst article 149 applies to the deep seabed, article 303 applies, potentially, to the maritime zones out to the edge of a state's continental shelf.' 47 Article 303 provides: 1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose. 2. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the sea-bed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article. 3. Nothing in this article affects the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges. 4. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.' 48 Article 303(1) imposes a general "duty to protect objects of an archaeological and historical nature,"'" reiterating that duty as found in article ' Article 303(2) provides that a state may exert some 144. PRorr & O'KEEFE, supr note 143, at 183; see alsoint'l LAW ASS'N, supa note 141, at UNCLOS, supranote 133, art. 149; Newton, supa note 137, at Oxman, supia note 137, at UNCLOS, supm note 133, art Id. art Id Id.

25 370 TULANE MARITIME LA WJOURNAL [Vol. 33:347 jurisdiction over historic wrecks in its contiguous zone,' 5 ' whilst article 303(3) maintains the status quo in terms of salvage law, and the rights of identifiable owners.' 2 The conference simply did not address this question in great depth; it is reflected by this preference of something close to the status quo by introducing a broad duty to protect within the ability of salvage law to do so. Whilst concern might have arisen that this "locked in" the application of salvage law to historic wreck, article 303(4), described as article 303's saving grace, "leaves the way open for specific agreement on the underwater cultural heritage."' 53 It was intended that article 303(4) would harmonise the rules of the law of the sea with regard to historic wrecks with the content of the emerging law of archaeology and cultural heritage. " It is in terms of this provision that a more comprehensive convention to preserve historic wrecks was adopted under the auspices of UNESCO. It is evident that in an attempt to reach consensus and produce a convention, the substantive provisions of articles 149 and 303 were left vague and ambiguous, which is really not surprising as their drafting was inconsequential compared to the major issues of the Third United Nations Conference on the Law of the Sea.' 5 Yet, these articles do contain substantive international law applicable to historic wreck, even if by way of general applicable principles. B. The 1989 Salvage Convention International law has recognised salvage law as the most appropriate method of both encouraging the rescue of endangered property at sea, and, importantly, protecting the marine environment from 151. The contiguous zone extends up to 24 nautical miles from the coastal state's baselines. Seeid art. 33. A number of states extend their heritage legislation over the contiguous zone. These include France (Act Concerning Marine Cultural Property of 1 December 1989), Tunisia (Protection of Archaeological Property, Historic Monuments and Natural Urban Sites Law No of 9 May 1988), the Netherlands (Wet op de Archeologische Monumentenzorg 2005), Spain (Act 27 of 1992), South Africa (Maritime Zones Act No. 15 of 1994), and the United States (Proclamation 7219, September 2, 1999), See Ole Varmer, United States, in DROMGOOLE, THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE, supm note 7, at 351, UNCLOS, supra note 133, art PRoTT & O'KEEFE, supra note 143, at 104. The International Law Association's Report of the International Committee on Cultual Heritage Law describes this interpretation of article 303(4) as one that "should encourage the work of the committee." ILA SIXTY-SEVENTH CONFERENCE, REPORT OF THE INTERNATIONAL COMMITTEE ON CULTURAL HERITAGE LAW (1996) Oxman, supra note 137, at PRoTr & O'KEEFE, supra note 143, at 104, believe that the lack of archaeological expertise present at the drafting of these articles contributed to the provisions being vague and ambiguous.

26 2009] HISTORIC WRECK SAL VA GE pollution from ships. In an effort to make the application of salvage law uniform from state to state, the International Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea was adopted in 1910 (1910 Brussels Convention). 56 In 1989, the IMO concluded a convention to replace the 1910 Brussels Convention."' The 1989 Salvage Convention makes no mention of any historic wreck (in the form of either sunken vessels or their cargoes), in the definition of "vessel" or "property."' 5 8 The question of the salvage of historic wreck was, however, raised during negotiations, when France and Spain attempted to have historic wrecks excluded.' 59 These attempts were partially successful in that article 30(1)(d) allows a state to enter a reservation which reserves the right not to apply the Salvage Convention "when the property involved is maritime cultural property of pre-historic, archaeological or historic interest and is situated on the sea-bed"'* " Taking into consideration the travaux preparatoires, the 1989 Salvage Convention is therefore applicable to historic wreck, unless a state specifically chooses not to apply it. Whilst the Salvage Convention does introduce an international salvage regime, this was not a codification of customary international law, and introduced significant modem developments, particularly with regard to the protection of the marine environment.'' Furthermore, given the possibility of excluding historic wreck from this international salvage regime, and the fact that the preexisting law applied by the various states failed to offer a uniform system of law applicable to historic wreck, salvage law cannot be said to be a "law of nations."' Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea, Sept. 23, 1910, 37 Stat Salvage Convention, supm note Id Id Id Fourteen countries have entered a reservation pursuant to article 30(l)(d): Australia, Canada, China, Croatia, France, Greece, Iran, the Netherlands, Norway, the Russian Federation, Saudi Arabia, Spain, Sweden, and the United Kingdom. The United States declined to make such a reservation. Not every country that entered a reservation will refrain from applying the convention to the salvage of historic wreck. The United Kingdom, for example, entered a reservation in accordance with article 30(1)(d) that merely gave it the right to enter a reservation in the future. See also Sarah Dromgoole, A Note on the Meaning of "Wreck, " 28 INT'L J. NAUT. ARCH. 321 (1999); Brice, supm note 14, at For a more detailed discussion on the 1989 Salvage Convention, see Michael Kerr, The International Conventon on Salvage How It Came To Be, 39 INT'L & COMP. L.Q. 530 (1990); Richard Shaw, The 1989 Salvage Convention and English law, LLOYD'S MAR. & CoM. L.Q. 202 (1996) The 1989 Salvage Convention failed to define the term "marine peril" for the purposes of applying salvage law Salvage Convention, supra note 24. It is unclear whether the convention superseded the whole of the common law of salvage, but it is submitted that courts

27 372 TULANE MARITIME LA WJOURNAL [Vol. 33:347 C 2001 UCHConvention In November 2001, the United Nations Educational, Scientific, and Cultural Organisation (UNESCO) adopted the Convention on the Protection of the Underwater Cultural Heritage (2001 UCH Convention).' 63 The Convention came into force on January 2, 2009, for those states party to the 2001 UCH Convention.'" It builds upon the principles contained in UNCLOS and provides a basis upon which historic wreck will be protected by an increasing number of states. The 2001 UCH Convention has its origins in the International Law Association's (LA)' 65 draft convention produced in ' Annexed to the draft was the Charter on the Protection and Management of Underwater Cultural Heritage' 67 produced by the International Council of may refer to preexisting common law in order to interpret the 1989 Salvage Convention. 43 HALSBURY'S LAWS OF ENGLAND para. 928 (4th ed. reissue 1997). For further discussion of the convention, see Geoffrey Brice Q.C., Salvage and the Maritime Environment, 70 TUL. L. REv. 669 (1995); Sarah Dromgoole & Nicholas J. Gaskell, Draf UNESCO Convention on the Protection of the Underwater Cultural Heritage 1998, 14 INT'L J. MARINE & COASTAL L. 177, 188 (1999); Nicholas J. Gaskell, The International Salvage Convention on Salvage 1989,4 INT'L J. ESTUARINE & COASTAL L. 268 (1989); Nicholas J. Gaskell, The 1989 Salvage Convention and the Lloyd Open Form SalvageAgreemen4 16 TuL. MAR. L.J. 1 (1990); Shaw, supm note Convention on the Protection of the Underwater Cultural Heritage, Doc. 31C/24, Paris, Aug. 3, 2001 [hereinafter 2001 UCH Convention]. The 2001 UCH Convention was adopted by the General Assembly of UNESCO on November 2, 2001, by a vote of eighty-one in favour, four against (Russian Federation, Norway, Venezuela, and Turkey) and fifteen abstentions (which included the United Kingdom, France, Germany, the Netherlands, Israel, Brazil, Colombia, Greece, Hungary, and Saudi Arabia) Id UCH Convention article 27 requires twenty states to ratify the Convention. As of November 2008, twenty states had ratified the convention: Barbados, Bulgaria, Cambodia, Croatia, Cuba, Ecuador, Lebanon, Libyan Arab Jamahiriya, Lithuania, Mexico, Montenegro, Nigeria, Panama, Paraguay, Portugal, Romania, Saint Lucia, Slovenia, Spain, and Ukraine. The Convention came into force three months after the acceptance of the Convention by Barbados on October 2, Founded in 1873, the International Law Association is a private non-governmental organisation of persons interested in international law. About Us-ILA, (last visited Mar. 8, 2009). The headquarters are situated in London and it has branches worldwide. Id For a detailed discussion of the ILA draft, see O'Keefe & Nafziger, supra note 137, at Established in 1964, ICOMOS is a non-governmental organisation with advisory status at UNESCO and whose primary function is to advise intergovernmental organisations of the steps necessary to conserve the monuments and sites of the world. About ICOMOS, (last visited Mar. 8, 2009); Historic Background, (last visited Apr. 2, 2009); Lawrence Biosson de Chazournes, Monitoring, Superv4sion and Coordination of the Standard-Setting Instruments of UNESCO, in 1 STANDARD-SETrNG IN UNESCO 51, 62 (Abdulqawi A. Yusuf ed., 2007). The ICOMOS Charter on the Protection and Management of Underwater was ratified by the 11 th ICOMOS General Assembly, held in Sofia, Bulgaria, from October 5-9, ICOMOS, CHARTER ON THE PROTECTION AND MANAGEMENT OF UNDERWATER CULTURAL HERITAGE (1996), available athttp://

28 2009] HISTORIC WRECK SAL VA GE 373 Monuments and Sites (ICOMOS), which sets out benchmark standards for underwater archaeology, and which explicitly excludes the commercialisation of historic wreck recovery. Furthermore, the draft convention itself excluded the application of salvage law to historic wreck. As the LA is a non-governmental organisation, it considered UNESCO to be the most appropriate organisation to adopt a convention, and the final draft was forwarded to UNESCO for consideration.' The exclusion of salvage law and the ICOMOS Charter's noncommercialisation clause were extensively debated.' The Salvage Law Clause Opposition to the application of salvage law to historic wreck can best be summarized by the official commentary to the ILA draft Convention's article, which stated: It should be noted that the law of salvage relates solely to the recovery of items endangered by the sea; it has no application to saving relics on land. For underwater cultural heritage, the danger has passed; either a vessel has sunk or an object has been lost overboard. Indeed, the heritage may be in greater danger from salvage operations than from being allowed to remain where it is... The major problem is that salvage is motivated by economic considerations; the salvor is often seeking items of value as fast as possible rather than undertaking the painstaking excavation and treatment of all aspects of the site that is necessary to preserve its historic value. 170 This argument, that salvage law is at odds with the preservation of historic wreck, was generally accepted during negotiations' 7 ' and was given effect in article 4, which provides: Any activity relating to underwater cultural heritage to which this Convention applies shall not be subject to the law of salvage or law of finds, unless it: 168. Regan appears to misunderstand the nature of the ILA, and, as a consequence, the nature of the draft convention (Buenos Aires Convention). Regan indicates that this draft Convention has not yet been ratified. Since the ILA is a non-governmental organisation, its draft conventions are incapable of adoption internationally and cannot be ratified by any state; quite simply because they are not international instruments. Regan, supra note 3, at For a more detailed discussion, see Forrest, supra note 88, at O'Keefe & Nafziger, supa note 137, at Beginning on page 404, the text of the convention forms an untitled appendix to the article by O'Keefe & Nafziger, supra note 137, at 404. See also Brice, supra note 14, at Roberta Garabello, The Negotiating History of the Convention on the Protection of the Underwater Cultural Heritage, in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: BEFORE AND AFTER THE 2001 UNESCO CONVENTION 89, 123-3, (Roberta Garabello & Tullio Scovazzi eds., 2003).

29 374 TULANE MARITIME LA WJOURNAL [Vol. 33:347 a) is authorized by the competent authorities, and b) is in full conformity with this Convention, and c) ensures that any recovery of the underwater cultural heritage achieves its maximum protection."' In its structure, article 4 opens with a clear rule: salvage law and the preservation of historic wreck are incompatible. Such a draconian stance was, however, resisted by states such as the United States and United Kingdom, requiring complex and protracted negotiations, eventually leading to a compromise which does leave the article open to criticism that it is vague and susceptible to alternative interpretations.' 73 Whilst article 4 opens with a clear rule, it is followed by exceptions that detract from its clarity. 2. The Non-Commercialization Clause' 74 While the ICOMOS Charter unequivocally declares that the commercial exploitation of historic wreck is fundamentally incompatible with its preservation, "5 the 2001 UCH Convention modified this draconian stance somewhat, providing in Rule 2 of the Annex that the "commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage."' 6 "Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods." 77 However, this rule has been qualified insofar as it goes on to declare: This Rule cannot be interpreted as preventing: a) the provision of professional archaeological services or necessary services incidental thereto whose nature and purpose are in full conformity with this Convention and are subject to the authorization of the competent authorities; b) the deposition of underwater cultural heritage, recovered in the course of a research project in conformity with this Convention, provided UCH Convention, supra note 163, art Garabello, supranote 171, at This Part contains extracts not indicated by quotation marks from Forrest, supra note 88, pt. VB, D "Underwater cultural heritage is also threatened by activities that are wholly undesirable because they are intended to profit few at the expense of many. Commercial exploitation of underwater cultural heritage for trade or speculation is fundamentally incompatible with the protection and management of the heritage." ICOMOS, supra note 167, introduction UCH Convention, supra note 163, Annex, R Id

30 2009] HISTORIC WRECK SAL VA GE such deposition does not prejudice the scientific or cultural interest or integrity of the recovered material or result in its irretrievable dispersal; is in accordance with the provisions of Rules 33 and 34; and is subject to the authorization of the competent authorities.' 78 It is clear that this rule attempts to ensure that artefacts are not regarded as commercial goods, but it also reflects the difficulty of divorcing the provision of commercial services during an excavation from the justification for that excavation. Rule 2(a) was therefore introduced to "make specific provision to ensure that it was clear that (in summary) professional archaeological services consistent with the Convention were not being referred to in this Rule."' 79 While the first sentence of Rule 2 is an attempt to clarify the issue, subsection (b) muddies the water to some extent, reflecting an attempt to reach consensus on this difficult issue. The failure to define "deposition" and identify the place of deposition does leave unfortunate ambiguities. This subsection requires that a collection of artefacts be deposited in either a private or a public collection (together with the project archive as far as possible), and that such a deposition shall not be considered as the commercial exploitation of historic wreck.' Subsection 2(b) must be viewed as an exception to the general rule, so that a collection of artefacts from historic wreck, excavated according to the remaining rules in the annex, and with appropriate authority from a state's administration could be sold, as a collection, to a private or public museum for a profit. While this may be an appropriate compromise, it does appear to be at odds with article 2(7), which embodies the general principle that historic wreck "shall not be commercially exploited."'"' In such circumstances, 178. Id. Rule 33 states: The project archives, including any underwater cultural heritage removed and a copy of all supporting documentation shall, as far as possible, be kept together and intact as a collection in a manner that is available for professional and public access as well as for the curation of the archives. This should be done as rapidly as possible and in any case not later than 10 years from the completion of the project, in so far as may be compatible with conservation of the underwater cultural heritage. Id. R. 33. Rule 34 states: "The project archives shall be managed according to international professional standards, and subject to the authorization of the competent authorities." Id. R. 34. The non-dispersal of a collection is exemplified in the approach taken by the original salvors of the R.M.S. TITANIC, who agreed that "the artifacts will only be used [for] a cultural purpose and will not, therefore, be part of any operations which would lead to their dispersion, but to the exception of exhibition purposes, and none of the artefacts will be sold." R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 435 E3d 521, 527, 2006 AMC 305, 313 (4th Cir. 2006) Chairman, Report for Working Group 3.- The Annex, R. 2, Doc. CLT-2000/CONF. 201/10, July 7, UCH Convention, supra note 163, Annex, R. 2(b) Id.

31 376 TULANE MARITIME LA WJOURNAL [Vol. 33:347 the general principle should dictate the interpretation of the rule, which leaves the exceptions in Rule 2 ambiguous, and possibly void for their inconsistency. The same ought to apply to article 4, which allows salvage law to apply to the recovery of historic wreck so long as it is in full conformity with the Convention. Because the Convention is designed in a way that excludes the commercialisation of historic wreck, the application of salvage law to the recovery of historic wreck is fundamentally incompatible with professional archaeological practice as expressed in the Annex, particularly in Rule 2. Because it also creates a conflict with article 2(7) of the Convention, which declares that historic wreck should not be exploited commercially, its interpretation should take the non-application of salvage law as the fundamental governing principle. At first glance, it may also appear that article 4 of the 2001 UCH Convention may conflict with article 303(3) of UNCLOS, which specifically preserves the law of salvage in the various maritime zones to which it applies. However, it is clear that in regard to states that may become parties to the 2001 UCH Convention, the provision of the more recent treaty will take precedence over the former in relation to similar subject matter, especially because the non-application of salvage law to historic wreck does not affect the basic principle embodied in UNCLOS and because such a resolution would not affect the enjoyment by other state parties of their rights or the performance of their obligations under UNCLOS. 182 Similarly, as O'Keefe convincingly argues, article 303(3) cannot be interpreted as preventing later conventions from modifying or excluding the law of salvage in the maritime zones to which article 303(3) applies. 83 ' This would be tantamount to freezing the development of international law at a single point in time. Furthermore, this interpretation is consistent with the development of international law in the form of the 1989 Salvage Convention which allows for the non According to UNCLOS article 311(3): Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention Patrick I. O'Keefe, Protecting the Underwater Cultural Heitage: The International LawAssociation Draft Convention, 20 MARINE PO' Y 297, 303 (1996).

32 2009] HISTORIC WRECK SAL VA GE application of the salvage convention to historic wreck.'" Any suggestion that article 303(3) somehow entrenches the application of the law of salvage to historic wreck in international law is negated by the French text of UNCLOS, equally authentic to the English, which provides in article 303(3) that "droit de recuperer des epaves et... autres rgles du droit maitine," which "is something different from the common law concepts of the law of salvage and admiralty." '85 Thus, no conflict may be found eventually between the two conventions. D. US. Commentators'Omissions Both Regan and Judge Niemeyer give these developments little, if any, consideration. Indeed, Regan, writing in 2005, appears oblivious to the fact that the ILA draft convention was taken as a starting point for negotiations at UNESCO in 1998, which ultimately resulted in the adoption of the 2001 UCH Convention. 8 ' Given the lengthy process initiated in the ILA in 1988, culminating in the draft convention in 1995 and negotiations at UNESCO from , and the resulting international convention in late 2001, it is very unlikely that any new initiative would be considered by any state. 87 ' As such, it is difficult to accept Regan's argument that a need arises to "propose[] a comprehensive international regime to protect all historic merchant shipwrecks from unregulated exploration and salvage." '88 The dearth of any comparative national perspective, and the limited consideration of existing international conventions leads Regan to assume that other states and international conventions might take cognisance of the U.S. federal admiralty court's approach in Columbus- America Discovery Group v Atlantic Mutual Insurance Co.,' 89 which called for the determination of the salvage award to take into account the Salvage Convention, supra note 24, art. 30(l)(d) Document presented by the Government of Italy at the 2000 UNESCO Meeting (document on file with author) Regan is not the only author to appear to ignore the UCH Convention. Regan, supra note 3, at 320. For example, it is unfortunate that the fourth edition of that monumental work J. REEDER, BRicE ON MARITIME LAW OF SALVAGE (4th ed. 2003), published two years after the adoption of the Convention, was not updated prior to publication to take this new development into account For a comprehensive account of the development of the 2001 UCH Convention, see Marina Papa Sokal, International Law for the Protection of the Undervater Cltural Heritage: Can Our Past Be Salvaged, CuLTuRE WITHouT CONTEXT (Illicit Antiquities Research Ctr., Cambridge, Eng.), Spring 2005, available athttp:// withoutcontext/issue 16/papa-sokal.htm Regan, supra note 3, at E2d 450, 1992 AMC 2705 (4th Cir. 1992).

33 378 TULANE MARITIME LA WJOURNAL [Vol. 33:347 extent of the salvors' preservation of the archaeological value of the historic wreck. Regan continues that "if this element is eventually accepted in other jurisdictions, it could ultimately become enshrined in the later amendments to the 1989 Salvage Convention or the planned IMO Convention on wreck."' 9 Given that a large number of states do not apply salvage law to historic wreck and that an increasing number of reservations are being made under article 30(l)(d) of the 1989 Salvage Convention, this is extremely unlikely.' 9 ' Even less likely is this U.S. approach making "its way into the jus gentium of international maritime law."' 92 A cursory consideration of the law applicable to historic wreck in other countries would have ruled out the application of salvage law, let alone the development Regan suggests. Judge Niemeyer, in his judgement in R.MS. Titanic, Inc. v Haver, gives the 1989 Salvage Convention cursory consideration, simply noting that its preamble declares that the Convention "ensure that adequate incentives are available to persons who undertake salvage operations in respect of vessels and other property in danger."' 93 However, no mention is made of the reservations made by a number of states, importantly including France," under article 30(1)(d) reserving the right not to apply the Salvage Convention to historic wreck, seriously calling into question the conclusion reached by Judge Niemeyer that "these conclusions reached by the district court about RMST's rights are consistent with the salvage law which is part of the jus gentium, and we expect that whether RMST had returned property from the TITANIC to an admiralty court in England or France or Canada, the court would, by applying the same principles, have reached the same conclusions." 9 5 Whilst only in force for those states party to the 2001 UCH Convention, it provides some measure of international consensus on the position of salvage law and the law of finds to historic wreck, and is consistent with the approach taken by many states. The 2001 UCH 190. Regan, supr note 3, at The IMO Convention on the Removal of Wrecks does not address the salvage of historic wreck, and has, as its aim, the removal of wrecks which threatens the marine or coastal environment, the safety of lives, goods and property at sea, or which poses a hazard to the safety of navigation. See further Patrick Griggs, Wreck Removal Draft Convenon, CMI YEARBOOK , at 376 (2006); Craig Forrest, At Last: A Convention on the Removal of Wrecks, 14 J. INT'L MAR. L. 394, 407 (2008) Regan, supra note 3, at E3d 943, 962, 1999 AMC 1330, 1353 (4th Cir. 1999) Gw~naelle le Gurun, France, in THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION, supra note 7, at 59, R.MS. Titanic, 171 E3dat967, 1999AMC at 1353.

34 2009] HISTORIC WRECK SAL VA GE 379 Convention and the 1989 Salvage Convention evince the evolutionary development of the law applicable to historic wreck and build on the principles embodied in UNCLOS. With the 2001 UCH Convention entering into force, the possibility of new ratifications increases significantly, and there are a number of states which appear to be considering ratification.' 96 VII. CONCLUSION Contrary to the conclusion reached by Judge Niemeyer, the jus gentium, the law of all maritime nations applicable to the application salvage law to historic wreck, is not "easy to define and declare."' 97 In light of the development of marine archaeology over the past fifty years, the various national and international approaches have radically changed the international seascape. UNCLOS offers a set of general protective principles, and whilst maintaining the status quo on salvage law, this has been more recently called into question by the number of reservations made to the application of the 1989 Salvage Convention to historic wreck. Most importantly, the adoption of the 2001 UCH Convention, and national responses to both it and the ICOMOS charter have evinced an evolving international move away from the application of salvage law. These developments are evident not only in the law and practise of a number of states, but also in the United States. A large part of U.S. law and practise is consistent with these developments, including the UCH Convention, such as the federal Abandoned Shipwreck Act of and the statutes of a number of states.' 99 Unfortunately, the more laissez faire regime persists for wrecks beyond the three-mile state zone, particularly wrecks that lie in international waters. U.S. federal admiralty courts, apparently mesmerised by principles laid down in antiquity, but which have never been convincingly applied, will be the last bastion for the application of salvage law to historic wreck Australia, South Africa, the Netherlands, Sri Lanka, and the Philippines appear willing, in principle, to ratify the convention, while China, New Zealand, Malaysia and Ireland appear to view the convention with favour, but have taken a cautionary "wait and see" approach before committing to ratification. See THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL PERSPECTIVES IN LIGHT OF THE UNESCO CONVENTION, supra note 7; Prott, supra note R.MS. Titanic, 171 E3dat966, 1999AMC at U.S.C (2006) Giesecke, supra note 10, at ; H.R. REP. No (I), at 2 (1988); H.R. REP. No (11), at 2.