MEMORIAL FOR RESPONDENT

Transcription

1 F1060-R FOURTH ANNUAL 2009 LAWASIA MOOT COMPETITION IN THE INTERNATIONAL ARBITRATION CENTER AT HO CHI MINH CITY GOVERNMENT OF ROLGA RESPONDENT In response to: BENEVOLENT HERITAGE INCORPORATED CLAIMANT MEMORIAL FOR RESPONDENT

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... 5 STATEMENT OF JURISDICTION... 9 QUESTIONS PRESENTED STATEMENT OF FACTS SUMMARY OF PLEADINGS PLEADINGS I. HERITAGE INC. WAS ENTITLED TO CONTRACT SALVAGE RIGHTS RATHER THAN PURE SALVAGE RIGHTS A. The element of voluntariness is not established, and as a result, the Heritage Inc. was not entitled to pure salvage B. Heritage Inc. is entitled to contract salvage rights II. RATIFYING THE 2001 UNESCO CONVENTION BY ROLGA DOES NOT INTERFERE WITH SALVAGE RIGHTS AND PERFORMANCE OF HERITAGE INC. 22 B UNESCO Convention does not violate the salvage rights of Heritage Inc. under the 1995 Partnering Agreement

3 a. The salvage operation under 1995 Partnering Agreement is authorized by a competent authority: b. There is no contradiction between the salvage operation under the 1995 Partnering Agreement and 2001 UNESCO Convention, especially in the relation with the issue of commercial exploitation c. Maximum protection of underwater cultural heritage is guaranteed d. In any event, the 2001 UNESCO Convention does not affect the Rolga s prior agreements III. AGREEMENT ON PROTECTION OF WRECK BETWEEN THE GOVERNMENT OF ROLGA AND THE GOVERNMENT OF ASTORIA DOES NOT VIOLATE RIGHTS OF HERITAGE INC A. The recognition of continuing cultural and historical rights of Astoria over the Coeur de l Ocean does not violate the salvage rights and performance of Heritage Inc: B. The disposition of collections by Astoria and Rolga does not affect the rights of Heritage Inc. to a fixed compensation IV. ROLGA HAS THE RIGHT TO ALLOW AQUATIC VIEW TO OPERATE TOUR AND TO PHOTOGRAPH COEUR DE L OCEAN SHIPWRECK V. HERITAGE INC. IS NOT ENTITLED TO THE EXCLUSIVE RIGHT OF PHOTOGRAPHING AND DOCUMENTING A. Salvage law does not accord Heritage Inc. the exclusive right of photographing and documenting Coeur de l Ocean

4 B. Heritage Inc. has not been granted to exclusive rights of photographing and documenting the Coeur de l Ocean C. In any event, the Heritage Inc. is not entitled to exclusive rights of photographing and documenting the Coeur de l Ocean a. Government of Rolga will suffer greater harm if Heritage Inc. is entitled to exclusive rights b. Public interest does not support the claim of Heritage Inc D. Even if Heritage Inc. was granted the injunctive relief was entitled, it does not establish an exclusive right since it does not have the right to exclusive possession VI. THE DISTRIBUTION OF ARTIFACTS SOLELY ON THE BASIS OF SALVAGE LEGAL PRINCIPLES WAS NOT ENVISAGED BY THE 1995 PARTNERING AGREEMENT MEMORANDUM A. The basis of salvage legal principles will not be applied on the distribution of artifacts B. The full effect of the salvage contract between the Government of Rolga and Heritage Inc a. The salvage contract is still effective since it is not affected by other factors. 38 b. The contract should be applied as the matter of the first priority VII. PRAYER FOR RELIEF

5 INDEX OF AUTHORITIES UNITED NATIONS RESOLUTIONS AND DOCUMENTS 1969 Vienna Convention on the Law of Treaties International Convention on Salvage... 30, 34, 38, 39 Strati, Draft Convention on the Protection of Underwater Cultural Heritage: Commentary, UNESCO Doc CLT-99/WS/8 (drafted April 1999) 97 ( Commentary ) The 2001 UNESCO Convention on the Protection of Cultural Heritage... passim CASES AND LAWS Aircraft Recovery, L.L.C., v. Abandoned Aircraft, 54 F.Supp.2d 1172, 1179 (1999) Atlantis Marine Towing, Inc. v. M/V "Elizabeth," 346 F.Supp.2d 1266 (S.D.Fla.2004) B.V. Bureau Wijsmuller v. United States, 702 F.2d 333 (2d Cir. 1983) Biscayne Towing & Salvage, Inc. v. Kilo Alfa Biscayne Towing & Salvage, Inc. v. Kilo Alfa, Ltd., No , 2004 WL (S.D.Fla. September 30, 2004) BLACKWALL, 77 U.S. (10 Wall.) 1, 13-14, 19 L.Ed. 870 (1869) Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977) Direx Israel Ltd v. Breakthrough Medical Corporation, 952 F.2d 802, Emblem, 8 F.Cas. 611, 614 (D.Me.1840) Fine v. Rockwood, 895 F.Supp. 306 (S.D.Fla.1995) Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982) Hener v United States, 525 F Supp 350, (S.D.N.Y. 1981)

6 In re Complaint of The City of New York, as Owner and Operator of M/V ANDREW J. BARBERI, 534 F. Supp. 2d 370 (E.D.N.Y. 2008) Jones v. Sea Tow Services Freeport NY Inc., 30 F.3d 360 (2d Cir. 1994)... 17, 18 L.J. By and Through Darr v. Massinga, 838 F.2d 118 (4th Cir.1988) MDM Salvage, Inc., v. Unidentified, Wrecked and Abandoned Sailing Vessel, 1987 AMC 537, 631 F.Supp 308 (S.D. Fla. 1986) New Bedford Rescue Marine Inc. v. Cape Jewelers Inc., 240 F.Supp.2d 101 (D.Mass.2003). 42 Noah's Ark v. Bentley & Felton Corp., 292 F.2d 437 (5th Cir. 1961) Osal Marine Services, Inc. v. M/V PANASEA, 1993, AMC 1930, 1932 (W.D. Wash. 1992).. 37 R.M.S Titanic, Inc., v. The Wrecked and Abandoned Vessel, 9 F.Supp.2d 624 (1998) 29, 31, 32 R.M.S. Titanic, Inc., v. Christopher Haver, Deep Ocean Expeditions, 171 F.3d 943, 1999 A.M.C (4 th Circuit 1999)... 30, 34 R.M.S. Titanic, Inc., v. Wrecked and Abandoned Vessel, 286 F.3d 194 C.A.4.Va. (2002) Sobonis v. Steam Tanker NATIONAL DEFENDER, 298 F. Supp. 631 (S.D.N.Y. 1969) Southern Most Marine Services, Inc. v. One (1) 2000 Fifty Four Foot (54') Sea Ray named M/V "Potential," 250 F.Supp.2d 1367 (S.D.Fla.2003) The CAMANCHE, 75 US (8 Wall) 448 (1869)... 20, 26 The Elfrida, 172 US The Neshaminy, 228 F. 285, (3d Cir.1915) The SABINE, 101 U.S. 384 (1879) Treasure Salvors, Inc., v. Unidentified Wrecked & Abandoned Sailing Vessel, 640 F.2d 560, 1981 A.M.C 1857 (5 th Cir. 1981)... 28, 29 6

7 Treasure Salvors. Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel, 556 F.Supp. 1319, 1340 (S.D.Fla.1983) Triplecheck, Inc. v. Creole Yacht Charters Limited, No CIV, 2007 WL (S.D. Fla. Mar 25, 2007) Weeks Marine, Inc., v. Cargo of Scrap Metal Ladened Aboard Sunken Barge Cape Race, 571 F.Supp.2d 334, 2008 A.M.C Yukon Recovery, L.L.C., v. Certain Abandoned Property, 205 F.3d 1189, 1190 (1999)... 26, 27 TREATISES AND OTHER BOOKS MJ Norris, 3A Benedict on Admiralty, (7th ed & Supp. 1986) Roberta Garabello and Tulio Scovazzi, The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Kluwer, 2004) JOURNAL ARTICLES AND ESSAYS Andrew Anderson, Salvage and Recreational Vessels: Modern Concepts and Misconceptions, 1993, USF Maritime Law Journal, Vol 6 No 1, page , 20 Jeffrey W. Yeats, Clearing Up the Confusion: A Strict Standard of Abandonment For Sunken Public Vessels, University of San Francisco Maritime Law Journal, MISCELLANIOUS MATERIALS 1988 Copyright, Designs and Patent Act by United Kingdom Andrew Anderson, Salvage and Recreational vessels: Modern concepts and misconceptions, USF Maritime Law Journal, Vol 6 No 1, page 221 (1993)

8 David E. Irwin, Salvage, contract or common law, Dec 5 th 2008, (last visited Aug. 20, 2009) Newell D. Smith, The Law of Salvage (February 5th 1994), (last visited Aug. 20, 2009);

9 STATEMENT OF JURISDICTION Both the Benevolent Heritage Inc. and the Government of Rolga have agreed to submit the disputes concerning rights and obligations arising from the contract of the parties to the International Arbitration Center for resolution. The acceptance of Arbitration authority is in accordance with the Rules of Arbitration of the Kuala Lumpur Regional Center for Arbitration in Part I, Rule 1(1), and pursuant to Clause 10 in the 1995 Partnering Agreement Memorandum between the Government of Rolga and the Heritage Inc. (September 27 th 1995). The Arbitral Tribunal is requested to give solutions on the basis of the rules and principles of conventions to which the Government of Rolga is a State Party, as well as applicable rules of national law. The Arbitral Tribunal is also requested to clarify the rights and obligations of parties, which are relevant to disputes, arisen from the award on the questions presented. The parties agree, pursuant to the Rules of Arbitration of the Kuala Lumpur Regional Center for Arbitration in Part I, Rule 6(1) and Clause 10 in the 1995 Partnering Agreement Memorandum that the award of the Arbitral Tribunal shall be final and binding on the parties involved. 9

10 QUESTIONS PRESENTED 1. Whether the Heritage Inc. was entitled to contract salvage rights under the 1995 Partnering Agreement Memorandum. 2. Whether the 2003 Agreement signed between Rolga and Astoria has interfered with the salvage rights and performance of Benevolent Heritage Inc. 3. Whether the ratification of the 2001 UNESCO Convention of Rolga has interfered with the salvage rights and performance of Benevolent Heritage Inc. 4. Whether the allowing of tour operators to organize wreck diving and photographing to the site has interfered with the salvage rights and performance of Benevolent Heritage Inc. 5. Whether Benevolent Heritage Inc. has exclusive rights of taking photograph and document of Coeur de l Ocean. 6. Whether the distribution of artifacts between the Parties to be made solely on the basis of salvage legal principles was envisaged by the 1995 Partnering Agreement Memorandum. 10

11 STATEMENT OF FACTS Astoria, traditionally, was considered to be a colonial empire of the West during the Seventeenth Century. One of the most notable expeditions was the journey of the Coeur de l Ocean led by Captain Van Cleef in 1800 to conquer the ancient trading city of Zamzala (now part of the State of Rolga), laden with many invaded riches taken from this city stacked on the ship. Unfortunately, Coeur de l Ocean sank and carried valuable commercial goods and war booty, went down underwater. In the 1980s, along with the advanced development of underwater scientific technology, the illustrious trading history of Zamzala and its sunken warships in Rolga territory have lured treasure hunters into the area. Wrecks become the targets of rampant illegal treasure hunting activities. In 1990, an Astorian, Mr. Bernard Bodd, a major shareholder of Benevolent Heritage Inc. [hereinafter the Heritage Inc. ] proposed the Rolga Cultural Heritage Committee for recovering significant historical wrecks belonging to the era of expansion of Astorian presence in the region. The proposal received the attention of the Rolgan Government as it involved the Coeur de l Ocean. After extensive research, Heritage Inc. discovered the actual claimed-to-be Coeur de l Ocean wreck s location. In order to convince the relevant authority, some rare items were recovered from the wreck. Heritage Inc. s efforts were paid back, since the Rolgan Government eventually approved the project and signed Partnering Agreement Memorandum on 27 th September [hereinafter the 1995 Agreement ] 11

12 Today, many of the artifacts have been recovered from the wreck Coeur de l Ocean but the whole collection has not yet been fully revealed. Some parts of the artifacts collection have been auctioned off to partly finance the cost of the project. The rest of the collection was showcased through a maritime exhibition within the National Museum by Rolga government in In the wave of international legal development on protecting underwater cultural heritage, in the same year, Rolgan government strengthened its cultural heritage appreciation as symbol of nationhood and introduced the new economic plan with promises of more governmental efforts in their duty of protecting and preserving the heritage. In late 2000, a new law in protecting wrecks of historical and cultural significance in Rolga was passed. In 2001, Rolga adopted the Convention on the protection of the Underwater Cultural Heritage [hereinafter the 2001 UNESCO Convention ]. Rolga also entered into an Agreement with Astoria [hereinafter the Protections of Wrecks Agreement ] to encourage the better protection between the two countries. However, Rolga did not inform Astoria about the existing commercial Agreement with Heritage Inc. when it entered into the Agreement with Astoria. The agreement stated that Astoria transfers all its right, title and interest in and to wrecked ancient vessels of the Astoria lying on or off the coast of Rolga and in and to any articles thereof to Rolga. On the other hand, Astoria has a continuing interest, particularly for historical and other cultural purposes, in articles recovered from any of the vessels referred to in the Agreement (together with the Guiding Principles for the determination of the disposition of materials from shipwrecks of Astoria off the coast of Rolga). Nevertheless, Astoria has not made any claims to cargo or in advanced any claim to rights in the cargo of the Coeur de l Ocean. 12

13 Public concerns on protecting heritage arose because the government was believed to get involved in the commercial exploitation of some parts of the artifacts recovered from the Coeur de l Ocean and some parts of the artifacts were destroyed due to poor-handling. Furthermore, the Rolgan government permitted a specialized tour operator Aquatic View to organize exclusive underwater trips to the Coeur de l Ocean wreck. According to Heritage Inc., the Rolga s activities, including selling tickets, CDs, making video clips, taking photographs, jeopardized their ongoing television documentary deal with an International Broadcasting Company. Those developments and public concerns prompted Heritage Inc. to worry that their performance was jeopardized. Heritage Inc. took steps at finalizing the distribution of recovered artifacts, but Heritage Inc. accused Rolga of unfair distribution. Based on article 10 of 1995 Agreement, the dispute is brought before the International Arbitration Center. 13

14 SUMMARY OF PLEADINGS HERITAGE INC. WAS ENTITLED TO CONTRACT SALVAGE RIGHTS UNDER 1995 PARTNERING AGREEMENT. Heritage Inc. failed to demonstrate the voluntariness, one of three elements making up the pure salvage, since they had conducted the salvage operation under an obligation arisen from the contract with Rolga. The contract, therefore, binds the salvor to receive compensation as contractually agreed and entitles Heritage Inc. to contract salvage. RATIFICATION OF 2001 UNESCO CONVENTION DOES NOT INTERFERE WITH SALVAGE RIGHTS OF HERITAGE INC. Rolga has the right to ratify any treaties with other countries as an exercise of its sovereignty. The salvage operation of Heritage Inc. is in conformity with 2001 UNESCO Convention since it is authorized by the competent Government of Rolga, is free of commercial exploitation purpose and helps to protect the Coeur de l'ocean in the best way. Moreover, the non-retroactive principle of the 2001 UNESCO Convention precludes the possibility of Rolga interfering with Heritage Inc. salvage rights under the 1995 Partnering Agreement. THE PROTECTION OF THE WRECKS AGREEMENT DOES NOT VIOLATE THE RIGHTS OF HERITAGE INC. The categorical differences of Heritage Inc. salvage rights and Astorian interests preclude the violation of the salvor s rights under the 1995 Partnering Agreement. 14

15 The fixed salvage compensation based on no cure, no pay contract can only be happened after the successful excavation and does not invade the rights of agreed compensation of Heritage Inc. as envisaged in 1995 Partnering Agreement. ROLGA HAS THE RIGHT TO ALLOW AQUATIC VIEW TO OPERATE TOURS AND PHOTOGRAPH THE COEUR DE L OCEAN. The Heritage Inc. failed to demonstrate any record of an injunctive relief issued by an authorized Court which aims to establish rights to exclude others from operating tour, documenting and photographing the shipwreck, and by nowhere near of obtaining it. Accordingly, Rolga does not violate the Heritage Inc. non-exclusive rights. HERITAGE INC. WAS NOT ENTITLED TO EXCLUSIVE RIGHTS OF PHOTOGRAPHING AND DOCUMENTING. Firstly, the law of salvage does not automatically accord Heritage Inc. the exclusive rights of photographing and documenting. Secondly, Heritage Inc. was not granted any injunctive relief to establish exclusive rights of documenting and photographing. Thirdly, the injunctive relief shall not be issued for the Heritage Inc. since the Claimant failed to demonstrate the irreparable harm in case of absence of the injunctive relief and, moreover, the public interest does not support the granting. This injunctive relief, moreover, in case of being granted or not, will not establish the exclusive rights for Heritage Inc. since Heritage Inc. does not have the right to exclusive possession. 15

16 THE DISTRIBUTION OF ARTIFACTS SOLELY ON SALVAGE LEGAL PRINCIPLES WAS NOT ENVISAGED BY 1995 PARTNERING AGREEMENT. Firstly, the basic legal salvage principles will not be applied to a case of contract salvage rights as such case. Secondly, the contract between Rolga and Heritage Inc. was in full effect, not influenced by any others conventions or agreements or common law principles of contract. Therefore, both parties were bound to follow it and apply it as a matter of first priority. 16

17 PLEADINGS I. HERITAGE INC. WAS ENTITLED TO CONTRACT SALVAGE RIGHTS RATHER THAN PURE SALVAGE RIGHTS. Considered as a common law right, salvage rights exist in two forms: contract marine salvage and pure marine salvage. 1 As a rule, the nature of the right affects what actually can be done and cannot done. Historically, there are many cases discussing these two forms of marine salvage. In general, a salvor will only succeed at claiming salvage award if he can establish that he conducted pure marine salvage. A. The element of voluntariness is not established, and as a result, the Heritage Inc. was not entitled to pure salvage. Salvage, as understood by common law, is the amount of compensation that voluntary salvors are entitled to if they were successful, in whole or in part, in saving an imperiled vessel. 2 In order to be pure salvage, and therefore able to bring a claim for compensation before the court, the salvor must establish three elements. 3 First, there must be marine peril. Second, the salvage service was conducted voluntarily, and not under any preexisting obligation. And third, the salvage service must succeed in part or in whole, as a result of the efforts that the salvor expended to salvage the vessel. Only when all three elements are 1 See infra note 65, 1989 International Convention on Salvage regulates two forms of salvage. 2 Aircraft Recovery, L.L.C., v. Abandoned Aircraft, 54 F.Supp.2d 1172, 1179 (1999). 3 See Newell D. Smith, The Law of Salvage (February 5th 1994), (last visited Aug. 20, 2009); Jones v. Sea Tow Services Freeport NY Inc., 30 F.3d 360 (2d Cir. 1994); Jeffrey W. Yeats, Clearing Up the Confusion: A Strict Standard of Abandonment For Sunken Public Vessels, University of San Francisco Maritime Law Journal, , page

18 established, is the claim considered successful. 4 As a result, if any single element is not established, a valid pure salvage claim does not exist. Conducting the salvage service voluntarily is a key requirement that distinguishes between pure salvage and contract salvage. The salvor in a voluntary salvage operation may not be under any obligations to salvage provided by any pre-existing contracts or legal provisions. 5 He must act spontaneously, or unbound to any other duties. If there is an prior existing contract or agreement or anything similar, the element of voluntariness is absent. 6 If there is a contract, then the services were rendered pursuant to the contract, not voluntarily. 7 In Cargill, 876 F.Supp. 508, at , the Supreme Court also came to a same decision where a salvage contract existed, which results that the salvor s claim of a salvage award failed. In the instant case, the claimant conducted the salvage service under the 1995 partnering agreement memorandum with the owner of the vessel, Government of Rolga. The 1995 Agreement regulates the duty of the claimant to recover the Coeur de l Ocean. As a rule, the existence of the Agreement precludes the element of voluntariness. The salvor, conducted the salvage according to a pre-existing contractual duty. In other words, the claimant had conducted the operation involuntary. This element is not established. Since the one of the three elements required to establish pure salvage does not constitute, the claimant is not entitled to salvage award as pure salvage. 4 The SABINE, 101 U.S. 384 (1879), page 2. 5 B.V. Bureau Wijsmuller v. United States, 702 F.2d 333 (2d Cir. 1983); Supra note 3, SS John, 30 F.3d In re Complaint of The City of New York, as Owner and Operator of M/V ANDREW J. BARBERI, 534 F. Supp. 2d 370 (E.D.N.Y. 2008). 7 Triplecheck, Inc. v. Creole Yacht Charters Limited, No CIV, 2007 WL (S.D. Fla. Mar 25, 2007), page 4; Biscayne Towing & Salvage, Inc. v. Kilo Alfa, Ltd., No , 2004 WL (S.D.Fla. September 30, 2004), page 6. 18

19 B. Heritage Inc. is entitled to contract salvage rights. The issue of contract salvage balances the rights between the salvor and the owner of the vessel. The contract clarifies the salvage schedule, the fees and payment which the salvor will receive. It addresses the issues such as security, arbitration, interest, attorney s fee, 8 According to Benedict, 159 at 12-2: [c]ontract salvage is that type of salvage service entered into between the salvor and the owners of an imperiled property, or by their respective representative, pursuant to an agreement, written or oral, fixing the amount of compensation to be paid whether successful or unsuccessful in the enterprise. The existence of the contract precludes the element of voluntariness, and without voluntariness, the salvor is not a pure salvor. However, the existence of a contract does not always create contract salvage, and pure marine salvage is still determined. 9 If the contract is executed contemporaneously with or after the services, the salvage services will still be considered as voluntary salvage, and consequently, the act of the salvor is still be considered pure salvage. Only in case the contract pre-dates the services, in other words the services were rendered as a consequence of a pre-existing duty, does the contract result in contract salvage. 10 In The Camanche, 75 U.S. 448 (1869) or Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190, (5th Cir. 1989), the Court held that a contract only precludes pure marine salvage if (1) the contract clearly covered salvage at a given sum for services; or (2) the agreement constituted a binding engagement to pay in all events, whether the operation was successful or not. 8 Andrew Anderson, Salvage and Recreational Vessels: Modern Concepts and Misconceptions, 1993, USF Maritime Law Journal, Vol 6 No 1, page Ibid. 10 Ibid. 19

20 Generally, salvage services are either 11 (1) voluntary, wherein the compensation is dependent upon success; (2) rendered under a contract for a per diem or per horam wage, payable at all events; or (3) under a contract for compensation payable only in case of success. This instant case s facts precluded the element of voluntariness; therefore, the first type does not exist. The other types were clarified by Andrew Anderson in his article Salvage and Recreational vessels: Modern concepts and misconceptions. 12 According to Andrew Anderson, if the contract does not provide any terms regulating the fixed compensation or the compensation is provided regardless of success, the salvor retains his status of pure salvage. 13 On the other hand, if the contract fixes the compensation only in case of success, that is a no cure, no pay contract and consequently the salvor loses his right to claim for a salvage award, but only receives the agreed amount of compensation. 14 If the salvor fails to recover the vessel, he will receive nothing at all. The 1995 Partnering Agreement Memorandum in this case was established according to the will of the Government of Rolga and Heritage Inc. After extensive research and sufficient evidence to show that the Heritage Inc. is able to recover a vessel claimed to be Coeur de l Ocean, in 27 th September 1995, the Government of Rolga signed the 1995 Partnering 11 The Elfrida, 172 US 186, 1898, page Supra note Ibid, page 220; The CAMANCHE, 75 US (8 Wall) 448 (1869). 14 Ibid, Andrew Anderson; Norris, MJ Norris, 3A Benedict on Admiralty 178 (7th ed & Supp. 1986).. 20

21 agreement memorandum with Heritage Inc. 15 There is no term in the 1995 Agreement directly provides that the price of salvage service will be based on a no cure, no pay basis. Nonetheless, throughout the memorandum, the element of a successful salvage was repeated. In clause 5 Sharing Arrangements, the monetary gain to which Heritage Inc. agreed is not absolutely specific. But the gain will be calculated on the appraised value of the recovered artifacts. In clause 8 Term and Termination, the agreement may be terminated in case they found vessel is not the Coeur de l Ocean; or in other words, the effort to actually salvage the Coeur de l Ocean is failed. On the whole, 1995 Agreement requires successful salvage operation. It also regulates the amount of money that the salvor s going to receive after successfully recovering the Coeur de l Ocean in part or in whole will be calculated on the basis of the appraised value of the artifacts that are actually recovered, through the Distribution Arrangement (clause 5 appendix 1). In fact, some parts of the recovered artifacts have been auctioned off at overseas auction houses in order to finance the cost of the project. 16 As a consequence, Heritage Inc., in the case at hand, loses its discretionary salvage award, but does receive the payment due to the agreed method of calculation. The claimant is entitled to contract marine salvage, rather than pure marine salvage. 15 Moot Problem, Appendix 1, page Moot Problem, 6, page 2. 21

22 II. RATIFYING THE 2001 UNESCO CONVENTION BY ROLGA DOES NOT INTERFERE WITH SALVAGE RIGHTS AND PERFORMANCE OF HERITAGE INC. A. Rolga has the power to ratifying the 2001 UNESCO Convention as sovereignty. Modern international law recognizes the rights of nations to enter into treaties with other countries as an unchallenged matter of sovereignty. 17 Because Rolga has long been a member State of 1969 Vienna Convention on the Law of Treaties, the ratification of 2001 UNESCO Convention is encouraged by international norms and is considered as a mere practice of sovereignty. No restraint shall be made on this ratification. B UNESCO Convention does not violate the salvage rights of Heritage Inc. under the 1995 Partnering Agreement. Salvage operation is not fully prohibited in 2001 UNESCO Convention. 18 Law of salvage can be applied in very strict criteria. The salvage operation must be (1) authorized by a competent authority (2) in full conformity with the Convention and (3) ensure the maximum protection of any recovery. 19 On the other hands, 2001 UNESCO Convention prohibits any activity that aims to exploit the underwater cultural heritage commercially. 20 a. The salvage operation under 1995 Partnering Agreement is authorized by a competent authority: Vienna Convention on the Law of Treaties. 18 Roberta Garabello and Tulio Scovazzi, The Protection of the Underwater Cultural Heritage: Before and After the 2001 UNESCO Convention (Kluwer, 2004) The 2001 UNESCO Convention on the Protection of Cultural Heritage, Art Ibid, Annex, Rule 2. 22

23 There were provided proofs that the salvage operation by Heritage Inc. is authorized by a competent authority of Rolga. At the beginning of the 1990s, Rolga, pursuant to the existing law, must have approved Heritage Inc. s projects to survey, recover and excavate historical objects or sites. 21 But it was not until 1993, when Heritage Inc. finally recovered some artifacts which were confirmed by government archaeologists to be rare items that Rolga decided to approve a full and extensive project on recovery of the Coeur de l Ocean by Heritage Inc. and eventually signed the 1995 Partnering Agreement Memorandum with the company in September It is obvious that the salvage operation arising from 1995 Partnering Agreement conducted by Heritage Inc. is fully authorized by a competent authority of Rolga. Furthermore, in order to ensure the maximum protection of Coeur de l Ocean and exercise the rights to better supervise the salvage operation, the 1995 Partnering Agreement establishes the duty of Rolga to monitor and record the exploration by an assembly of two government representatives. 23 The Government of Rolga, in any event, is in full control and supervision over the salvage operation of Heritage Inc. b. There is no contradiction between the salvage operation under the 1995 Partnering Agreement and 2001 UNESCO Convention, especially in the relation with the issue of commercial exploitation. The 2001 UNESCO Convention strongly opposes commercial exploitation of cultural heritage. In order to provide full protection on underwater cultural heritage, contribute 21 Moot Problem, 4, page Moot Problem, 5, page Moot Problem, Appendix 1, Clause 4, page 9. 23

24 for the benefit of mankind, the 2001 UNESCO Convention forbids any activity of trading, selling, buying, bartering and speculation or dispersal of underwater cultural heritage. 24 There is no evidence of such activities envisaged under the 1995 Partnering Agreement. The 1995 Partnering Agreement Memorandum clearly states that the sales and marketing of artifacts are excluded 25 while the agreed compensation of the Heritage Inc. can be adjusted with the respect to the aggregate amount of the appraised values and/or selling prices of the artifacts, net of agreed selling expenses. 26 The artifacts at any time are kept in a whole collection without being sold to meet the sharing arrangements of this Agreement. The fact that some parts of collection have been auctioned off at overseas auction houses does not constitute the commercial exploitation intended by both parties since the main purpose of this activity is to finance the costs of the project. 27 Historically, auctioning has been a common way to finance the ongoing salvage operation by relevant parties. 28 This auctioning off of the artifacts does not constitute the commercial exploitation conducted by Rolga and Heritage Inc. c. Maximum protection of underwater cultural heritage is guaranteed. A very strict process to ensure the maximum protection of recovery was agreed by Rolga and Heritage Inc. and envisaged in the 1995 Partnering Agreement 29. The project was well 24 Supra note Moot Problem, Appendix 1, Clause 6, page Ibid, Clause 5, page Moot Problem, 6, page Supra note 18, pages Moot problem, appendix 2. 24

25 financed 30 and deliberately surveyed 31 before operations commenced while the ongoing operation has been under the supervision of a competent authority. 32 In fact, there was no evidence or record of any failure of the salvage operation. d. In any event, the 2001 UNESCO Convention does not affect the Rolga s prior agreements. Non-retroactivity is one of the highlights of the 2001 UNESCO Convention. Accordingly, only when a nation becomes a State party, does the Convention take effect on this nation.. This regulation means that no prior rights and obligations of the State Party shall be altered by the ratification of this Convention. According to this principle, salvage operations by Heritage Inc. under the 1995 Partnering Agreement shall not be modified by the 2001 UNESCO Convention regulations. The 2001 UNESCO Convention does not alter the rights and obligations of Rolga regarding the protection of Coeur de l Ocean arising from the 1995 Partnering Agreement, 33 which had been signed six years prior to the ratification to the 2001 Convention. Therefore, the salvage rights and performance of Heritage Inc., in this case, is fully guaranteed. 30 Moot Problem, Appendix 1, Clause 3, pages Moot Problem, 4 and 5, page Moot Problem, Appendix 1, Clause 4, page UNESCO Convention, Art. 6(3). 25

26 III. AGREEMENT ON PROTECTION OF WRECK BETWEEN THE GOVERNMENT OF ROLGA AND THE GOVERNMENT OF ASTORIA DOES NOT VIOLATE RIGHTS OF HERITAGE INC. A. The recognition of continuing cultural and historical rights of Astoria over the Coeur de l Ocean does not violate the salvage rights and performance of Heritage Inc: As a first salvor, Heritage Inc. is entitled to rights of unchallenged salvage, 34 which exclude other salvors over whom the court has in personam jurisdiction. 35 Meanwhile, as provided in the Agreement, Rolga recognized that Astoria has a continuing interest, particularly in historical and other cultural purposes in articles recovered from any of the vessels referred to in the Agreement. 36 Firstly, Astorian rights differ from the nature of salvage rights of Heritage Inc. since the salvage rights from a salvage contract are merely considered as rights to compensation 37 while Astoria was entitled to cultural and historical interests. 38 While the Heritage Inc. exercises its rights to seek for compensation on the excavation and recovery of the Coeur de l Ocean, Astoria aims at the educational promotion and archaeology purposes. By granting Astoria these interests, which are in a different category from Heritage Inc. s, Rolga does not violate any salvage rights and performance of the salvor. 34 Yukon Recovery, L.L.C., v. Certain Abandoned Property, 205 F.3d 1189, 1190 (1999). 35 Hener v United States, 525 F Supp 350, (S.D.N.Y. 1981). 36 Moot Problem, 9, page Supra note 14, Benedict on Admiralty 159 at 12-2; Supra not 13, Camanche. 38 Moot Problem, 9, page 4. 26

27 Secondly, the exclusiveness in salvage of Heritage Inc. in which may be granted to a contract salvor should be understood as the rights to performance without any interference from competing salvors. 39 In fact, the continuing historical and cultural interests of Astoria are, traditionally, the rights to disposition of artifacts for the purposes of culture and history 40 in order to prevent the over-fragmentation of collections. 41 The Protection of Wrecks Agreement has nothing to deal with salvage matters and, in any event, does not harm the rights to free and full salvage performance of Heritage Inc. Lastly, despite the fact that 1995 Partnering Agreement has granted Heritage Inc. the rights of using the Coeur de l Ocean brand name in sales and marketing merchandizes related to the shipwreck, 42 which is not exclusive, it does not distinguish Astorian cultural and historical interests. Had Astoria exercised their rights for cultural and historical purposes, Heritage Inc. could still operate the salvage operation fully and freely. In fact, there was no evidence of any reported obstruction of the Heritage Inc. s salvage operation. B. The disposition of collections by Astoria and Rolga does not affect the rights of Heritage Inc. to a fixed compensation. Pursuant to the 1995 Partnering Agreement, the compensation of Heritage Inc. is based merely on the appraised value of successfully recovered artifacts. 43 The principle, in this 39 Supra note 33, Yukon Recovery, 205 F.3d 1189, (1999). 40 This practice was long adopted by Government of Netherlands and Australia concerning the Old Dutch shipwrecks off the coast of Western Australia, Britain with the shipwreck off the coast of South Africa. 41 Anastasia Strati, Draft Convention on the Protection of Underwater Cultural Heritage: Commentary, UNESCO Doc CLT-99/WS/8 (drafted April 1999) 97 ( Commentary ). 42 Moot Problem, Appendix 1, Clause 6, page Moot Problem, Appendix 1, Clause 5, page 9. 27

28 case, is no cure no pay, which is traditionally accepted by the courts. 44 The salvor may exclude competing salvors from operating salvage services on the shipwreck or any relevant activities in order to protect the rights of full compensation. 45 Whether the disposition of collections by Astoria and Rolga will affect the rights of Heritage Inc. to compensation is a question that needs a careful examination in the context and order of the facts of this case. In fact, a division of materials can only be made after the successful excavation and is based not merely solely on the consideration of cash value, but also the historic and educational considerations, which can only be concluded after a long study and research process 46. In contrast, the compensation for salvage service rendered by Heritage Inc. is enforceable by the 1995 Partnering Agreement and pursuant to no cure no pay basis. Moreover, pursuant to the salvage tradition, Heritage Inc., as a salvor, can obtain a maritime lien over the recovered artifacts to ensure compensation from Rolga. 47 The customs of salvage and the terms of the 1995 Partnering Agreement provide more than enough protection of the rights to compensation of Heritage Inc. so that the claim of interference by Claimant does not constitute. 44 Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982). 45 Supra note 33, Yukon Recovery, 205 F.3d 1189, Moot Problem, Appendix 2, A(1), page See Treasure Salvors, Inc., v. Unidentified Wrecked & Abandoned Sailing Vessel, 640 F.2d 560, 1981 A.M.C 1857 (5 th Cir. 1981), on remand to, 546 F.Supp. 919, 1983 A.M.C (S.D. Fla. 1981). 28

29 IV. ROLGA HAS THE RIGHT TO ALLOW AQUATIC VIEW TO OPERATE TOUR AND TO PHOTOGRAPH COEUR DE L OCEAN SHIPWRECK. The tradition of salvage operations clarifies this issue. The ongoing salvage operation is guaranteed from the interference of potential salvors, which is accepted as undisputed. 48 On the other hand, anyone other than competing salvors can only be excluded from entering and operating non-salvage activities in the shipwreck in rare and special cases, where an injunctive relief was issued by an authorized court. 49 The court will apply strict test before granting any injunctive relief. In the case in question, there was no evidence or record of any injunctive relief that was granted to Heritage Inc. to exclude wrecks diving and photographing activities related to Coeur de l Ocean. Since the exclusive rights in this case are not natural and in need of a very strict examination by an authorized court, 50 it is therefore clear that there is no exclusive right to dive or photograph the wreck. Whether the Heritage Inc. meets the necessary criteria to receive the injunctive relief and therefore to be entitled to the rights to exclusively photograph and document the Coeur de l Ocean is not an issue in this submission and will be dealt later on. 48 Ibid. 49 See R.M.S Titanic, Inc., v. The Wrecked and Abandoned Vessel, 9 F.Supp.2d 624, (1998). 50 Ibid.,

30 V. HERITAGE INC. IS NOT ENTITLED TO THE EXCLUSIVE RIGHT OF PHOTOGRAPHING AND DOCUMENTING. A. Salvage law does not accord Heritage Inc. the exclusive right of photographing and documenting Coeur de l Ocean. Under the 1989 International Convention on Salvage, of which Rolga is a member State, a salvage operation is defined as an act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever. 51 The definition clearly states that the purpose and policy of salvage law, which are widely accepted by courts, is the encouragement of the voluntary assistance to ships and cargoes in distress, 52 which does not include the notion that the salvor can use the property being salvaged for a commercial use to compensate the salvor when the property saved might have inadequate value. 53 Given the policy of salvage law, the salvage rights granted to Heritage Inc., regardless of the forms of those rights, do not automatically include the exclusive rights of photographing and documenting the Coeur de l Ocean, since such award may result into the counterparts to policy of salvage law and encourages the commercial exploitation on the recovered materials by the salvor, which is strongly counter to salvage law in general. B. Heritage Inc. has not been granted to exclusive rights of photographing and documenting the Coeur de l Ocean. 51 United Nations Educational, Scientific and Cultural Organization, Convention on the Protection of Underwater Cultural Heritage, 41 I.L.M. 40 (2002), Art. 1(a). 52 See R.M.S. Titanic, Inc., v. Christopher Haver, Deep Ocean Expeditions, 171 F.3d 943, 1999 A.M.C (4 th Circuit 1999). 53 Ibid. 30

31 Pursuant to the salvage law tradition in common law countries, unlike the case of exclusive salvage rights, the exclusive right of photographing and documenting is not naturally included in general salvage rights, but must be granted by order for an injunctive relief by an authorized maritime court. 54 We assert that this issue is a matter of fact and the provided record is really clear. There is no record or evidence which proves that the Heritage Inc. has obtained an injunctive relief, by which it can exclude others from photographing and documenting the shipwreck. It is inappropriate to claim the exclusive rights of photographing and documenting the Coeur de l Ocean without the formal grant from the court. C. In any event, the Heritage Inc. is not entitled to exclusive rights of photographing and documenting the Coeur de l Ocean. The question is now whether Heritage Inc. would be entitled to the injunctive relief that would provides the exclusive rights of photographing and documenting the Coeur de l Ocean. Customarily, an injunctive relief can only be issued after satisfying a hardship balancing test applies to determine the granting or denial of a preliminary injunction 55. The test is designed to balance the harms and effects on relevant parties and the public interest. In the test, there are several elements need to proved including: (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if 54 See e.g. MDM Salvage, Inc., v. Unidentified, Wrecked and Abandoned Sailing Vessel, 1987 AMC 537, 631 F.Supp 308 (S.D. Fla. 1986); Weeks Marine, Inc., v. Cargo of Scrap Metal Ladened Aboard Sunken Barge Cape Race, 571 F.Supp.2d 334, 2008 A.M.C. 2602; Supra note 48, R.M.S Titanic, 9 F.Supp.2d 624; Supra note 46, 546 F.Supp. 919, 929 (S.D.Fla.1981). 55 See Direx Israel Ltd v. Breakthrough Medical Corporation, 952 F.2d 802, 812, citing from Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). 31

32 the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) The public interest. 56 a. Government of Rolga will suffer greater harm if Heritage Inc. is entitled to exclusive rights. The issue is again a question of fact and requires close examination on the record. In fact, the most significant harm caused to Heritage Inc. is the effect on an ongoing television documentary deal with the International Broadcasting Company. 57 Without the injunctive relief, other tour operators and photographers (e.g. Aquatic View) can freely access the shipwreck with the consent of Rolga. The harm to Heritage Inc. in this case is not sufficient. Moreover, it is purely a matter of economic harm and cannot be considered as irreparable. In contrast, Rolga, being the owner of Coeur de l Ocean, would suffer a greater harm if the Heritage Inc., was entitled to the exclusive rights. Rolga will be both politically and economically affected. Firstly, the 2000 Rolgan economic plan promised more efforts to be undertaken by the authority in protecting and ensuring sustaining use of its cultural heritage 58. If the exclusive right of photographing and documenting is granted to Heritage Inc., public awareness, which is one of the most important approaches to preserve and promote the value of heritages for the future generation and public interest, will be immediately. In the long run, these effects can cause a failure in the Rolgan economic plan that will affect the stability of Rolgan society. Secondly, the international obligation of Rolga will be altered if the exclusive right is granted. Under the Protection of Wrecks Agreement with Astoria, Rolga has officially 56 See L.J. By and Through Darr v. Massinga, 838 F.2d 118, 120 (4th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989); Supra note 48, R.M.S Titanic, Inc.,9 F.Supp.2d Moot Problem, 11, page Moot Problem, 7, page 3. 32

33 recognized the continuing historic and cultural interests of Rolga, from which the two governments can help promote the educational and archaeological value of Coeur de l Ocean. Had the Heritage Inc. been granted the exclusive right, the purpose of the Protection of Wrecks Agreement would not be able to be fulfilled. This will be an actual irreparable harm if the exclusive right is approved. b. Public interest does not support the claim of Heritage Inc. As an underwater cultural heritage, any activity concerning the exclusive access to Coeur de l Ocean needs to be balanced with the public interest. 59 Under the 2001 UNESCO Convention on Protection of Underwater Cultural Heritage, an underwater cultural heritage will be best preserved for the public interest if it is in situ preservation, 60 with the concern of protection by international cooperation, 61 and with the consideration of the public awareness. 62 By granting Heritage Inc. exclusive rights, none of these principles can be enforced and this will be a loss to humanity. D. Even if Heritage Inc. was granted the injunctive relief was entitled, it does not establish an exclusive right since it does not have the right to exclusive possession. 59 Supra note 19, 2001 UNESCO Convention on Protection of Underwater Cultural Heritage, art. 2 (3). 60 Ibid., Art. 2 (5) 61 Ibid., Art. 2 (1), Art. 2 (4) 62 Ibid., Art. 2 (10) 33

34 International copyright law clarifies this issue. Under the 1866 Berne Convention and the 1996 WIPO Copyright Treaty, only protected works can be copyrighted, 63 not the property itself. Traditionally, the member States of the 1866 Berne Convention and the 1996 WIPO Copyright Treaty do not expand copyright protection to the right to exclude others from access to the property. 64 On the other hand, member States of the 1866 Berne Convention and the 1996 WIPO Copyright Treaty do, in rare circumstances, entitle the exclusive right to viewing and photographing of property when the possessor can exercise an exclusive possession and remove the property in a private and controllable location 65 where it cannot be viewed or photographed normally. Firstly, Heritage Inc. has a salvage lien to claim compensation from the Government but this lien does not expand temporary possession to the scope of exclusive possession. 66 Although a claim for salvage compensation is secured by a maritime lien on the vessel or other property salvaged and a salvor may normally retain possession of the salvaged property for a reasonable time, 67 while efforts to claim compensation are pursued, eventually, the salvor must either pursue a lien claim or release the property to its owner. Besides, the law of salvage also imposes duties of good faith, honesty and diligence in protecting the salvaged property Ibid., Art. 2 (1). 64 See 1988 Copyright, Designs and Patent Act by United Kingdom, section 6 (1). 65 Supra note 51, R.M.S. Titanic Inc. 171 F.3d 943, FN5. 66 The 1989 International Convention on Salvage, Art. 20 (2); Emblem, 8 F.Cas. 611, 614 (D.Me.1840); Supra note 14, 3A Benedict on Admiralty, 143, at 10-8 (quoting The Emblem ). 67 R.M.S. Titanic, Inc., v. Wrecked and Abandoned Vessel, 286 F.3d 194 C.A.4.Va. (2002). 68 Supra note 51, R.M.S. Titanic Inc. 171 F.3d 943, FN5. 34

35 Moreover, it is inappropriate to say that the Coeur de l Ocean is in a private and controllable location where the Heritage Inc. has right to exclude others from access. Under the 2000 Rolgan law, the authority to designate area within Rolgan waters as a restricted site belongs only to the Minister of Government of Rolga. 69 In fact, Rolga had declined the Rolgan Cultural Society s proposal to designate the Coeur de l Ocean and its site as restricted area. 70 Given the fact that Coeur de l Ocean was never a restricted area or a private location, it is inappropriate to restrict people from photographing and documenting a property in a public place such as in the case of Coeur de l Ocean shipwreck. 69 See Moot Problem, 8, page See Moot Problem, 10, page 4. 35

36 VI. THE DISTRIBUTION OF ARTIFACTS SOLELY ON THE BASIS OF SALVAGE LEGAL PRINCIPLES WAS NOT ENVISAGED BY THE 1995 PARTNERING AGREEMENT MEMORANDUM. The claimant was bound by its contract with the government of Rolga, and the basis of salvage legal principles will not be applied to the distribution of artifacts. A. The basis of salvage legal principles will not be applied on the distribution of artifacts. The main aim of a salvor when he conducts a salvage operation is finance. In other words, the person who salvages a vessel is entitled to an amount of payment as a compensation for all his work to recover the vessel. This compensation encourages the salvors to contribute to the safety of marine route. "The salvage award, which is unique to maritime and admiralty law, is not one of quantum meruit as compensation for work performed, [but] is a bounty given on grounds of public policy to encourage the rescue of life and property imperiled at sea and to foster maritime commerce." 71 As discussed above, the key difference between pure salvage and contract salvage is the element of voluntariness. Each of the two forms of salvage has its own characteristics. The way to calculate the compensation in these two types is one of those characteristics. Actually, there is no precise formula 72 to calculate compensation. However, throughout the development of 71 The Neshaminy, 228 F. 285, (3d Cir.1915); Fine v. Rockwood, 895 F.Supp. 306, 308 (S.D.Fla.1995). 72 Supra note 7, Triplecheck, Inc, F.Supp.2d, 2007 WL