Research Guide on the International Treatment of Ancient Shipwrecks

Tessan Farbiarz, J.D. Candidate 2010                                                                                          

Nova Southeastern University, Shepard Broad Law Center

Updated: April 20, 2009

Contents

1. Brief Overview
   1. In recent years, technological advances have enabled salvors to locate and salvage ancient artifacts and cultural heritage that have long been inaccessible. The following research guide serves as a pathfinder for those interested in the international treatment of historic or ancient sunken shipwrecks. It is intended for researchers seeking resources on international issues involving the remains of shipwrecked vessels and their cargo located in territorial waters and/or the high seas. Due to the rapid growth in technology, treasure hunting and salvaging of ancient shipwrecks has caused this area of the law to receive a wide variety of international attention. Therefore, this pathfinder is provided for informational purposes and should not be treated as exhaustive or authoritative.
2. Introductory Texts
   1. Brice, Geoffrey, Maritime Law of Salvage, London: Sweet and Maxwell (1993). (an in depth discussion of the development of salvage law, salved property and values, the impacts of salvage on the marine environment, as well as admiralty jurisdiction)
   2. Garabello, R. & Scovazzi, T. (2003), The protection of underwater cultural heritage: before and after the 2001 UNESCO Convention, Martinus Nijhoff Publishers. (by analyzing this body of law both before and after the 2001 UNESCO Convention, this book provides comprehensive insight into the developing nature of the law)
3. List of Key Abbreviations
   1. UNESCO (United Nations Educational, Scientific and Cultural Organizations).
   2. NOAA (National Oceanic and Atmospheric Administration).
   3. IMO (International Maritime Organization) see VII(c)
4. Dictionaries and Directories
   1. Free Legal Advice (this site provides answers to questions of salvage and treasure, along with a breadth of other legal areas.)
   2. Maritime Archeology Links (this site provides a directory of links for underwater archeology)
5. Treaties
   1. United Nations Convention on the Law of the Sea (this treaty with over fifty nations as signatories, such as Australia, Brazil, Egypt, and Germany, discusses archaeological and historical objects found at sea, specifically in Part XVI, Article 303)
   2. Treaty of Friendship and General Relations of 1910 (Treaty between Spain and the United States affording to shipwrecked vessels of the other the same immunities as would be granted to their own)
   3. International Convention on Salvage, 1989 (this convention recognizes that substantial developments, such as the increased concern for the protection of the environment, has effects on the law of salvage, and was entered into by nations for uniform international rules regarding salvage operation)
   4. UNESCO Convention for the Protection of Underwater Cultural Heritage, 41 I.L.M. 40, art. 4 (2002). (this convention discusses the law of finds and salvage in regards to underwater cultural heritage)
6. Principal Institutions involved
   1. International Tribunal for the Law of the Sea (International judicial body established by Convention) 
   2. United Nations Division for Ocean Affairs and the Law of the Sea
   3. International Maritime Law Institute, Est. in 1988 under the auspices of the IMO, a specialized agency of the United Nations (password required)
7. Legislation
   1. Sunken Military Craft Act, Pub. L. 108-375, div, A, title XIV, 118 Stat 1811, 2094 et. Sec. (This Act codifies the treatment of domestic and foreign sunken military craft locatred in United States waters, with respect to the Laws of Finds and Salvage.)
   2. Abandoned Shipwreck Act, 43 U.S.C. 2101 et seq. (1988). (an Act to establish the title of states in certain abandoned shipwrecks and for other purposes)
   3. Various Legislation in Several Countries for Shipwreck Salvage (This site provides eternal links to the legislation of several countries concerning shipwreck salvage.)
8. Case Law
   1. Databases
      1. Lexis: Legal > Area of Law - By Topic > Maritime Law > Find International Materials & Treaties
      2.  Westlaw: All Databases > Topical Materials by Area of Practice > Maritime Law > International Materials - complete list
      3. WorldLii: (Provides international maritime cases available on the internet without a password.)
      4. IMAC Digest (Institute of Marine Archeological Conservation admiralty court transcripts)
   2. The current status of the law in the United States:
      1. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978).
      2. Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel, 221 F.3d 634 (4th Cir. 2000).
9. Selected Journals
   1. Maritime Archeology Links  (this journal is the primary source for different aspects of nautical archeology research)
   2. Curfam, David., Thar Be Treasure Here: Rights to Anceint Shipwrecks in International Waters-A New Policy Regime 86 Wash. U. L. Rev. 181 (2008).
   3. Kang, Charissa A., Charting through the protection for Historic Shipwrecks Found in U.S. Territorial Waters, 19 Va. Envtl. L.J. 87 (2000). (available on HeinOn-Line, pass-word protected.)
   4. Bederman, David J., Historic Salvage and the Law of the Sea, 30 U. of Miami Inter-American L. Rev., 99-129 (1998). (available on HeinOn-Line, pass-word protected.)
   5. Sweeney, J. C., An Overview of Commercial Salvage Principles in the Context of Marine Archaeology." 30 J. of Maritime L. & Commerce 185-203 (1999). (available on HeinOn-Line, pass-word protected.)
10. Secondary sources
    1. Treatises by Experts
       1. Norris, Martin J.,  Benedict on Admiralty (1997). (see specifically Volume 3A, The Law of Salvage)
11. Blogs
    1. Odyssey and Underwater Archeology (blog considering legal impacts of a controversy involving the ancient remains of a Spanish shipwreck.)

b.      International Law Reporter (contains postings related to current international maritime issues)

c.       JURIST, Legal News and Research (general blog searchable for all legal issues)

12. Multimedia - one of each would be great
    1. Videos
       1. Discovery Channel presents Treasure Quest. (Following the crew of Odyssey Marine Explorations, Inc. in the search for ancient shipwrecks, the series shows a unique perspective on one side of the law.)
       2. Videos of shipwrecks and underwater archeology (Scroll down.)
    2. Podcasts
       1. It was 20 years ago today ( A podcast discussing the debate of “an attempt to regulate salvage of the wreck of the Titanic, was signed into law twenty years ago today.”)
13. At least one RSS feed
    1. NOAA
14. Research Guides       
    1. RMS Republic Research Guide (Although primarily dedicated to the RMS Republic and the RMS Titanic, this site is a helpful research guide for issues on the finds and salvage of historic shipwrecks.)
15. Example
    1. Question: Your client, Salvage Corp., has just located what they believe to be an ancient Spanish treasure galleon from the 18th century, after investing over $500,000 and almost six months. The shipwrecked vessel is located in the contiguous zone of the coast of the United States. What hurdles will Salvage Corp. face in their attempt to seek title to the property or a salvage award?
    2. Answer: Salvage Corp. could petition a United States Admiralty court seeking the relief of either title to the ancient vessel under the Law of Finds or the rights to a salvage award under the Law of Salvage. See Application of Salvage Law and the Law of Finds to Sunken Shipwreck Discoveries.

Depending on the location of the discovery and what was actually discovered, different laws will be applicable. Environmental permitting is a big consideration in terms of actually undertaking salvage operations. Whereas, sovereign immunity and consent of the sovereign are considerations that arise when the sunken vessel is the property of a foreign state.

16. Conclusion
    1. This topic continues to gain international attention, which in turn, continues to effect this area of the law. International maritime law and the laws of finds and salvage stem from a multitude of sources, ranging from conventions and treaties, to case law and domestic legislation. As such, there is no right place to find all the answers. The best starting point is with a news or law journal article because the many different aspects of this subject are laid out in a reader friendly manner with reference to the sources relied upon.
17. Suggestions for further reading
    1. BBC News: World (This article, Big Business of Deep Sea Treasure Hunters, is a good starting place for a discussion about current events in international laws protecting ancient shipwrecks. The article also provides links to other current events in this topic.)