The archaeological duty of care: the legal, professional, and cultural struggle over salvaging historic shipwrecks.

Author:Bryant, Christopher R.
 
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"The cultural heritage of the western world, the colonial appetite of the Spanish Empire, nearly three centuries of man's timeless quest for wealth and adventure, and the distribution of authority in the American Federalist legal system are all substantially intertwined [in this Article]." (1)

INTRODUCTION

The law of shipwrecks, treasure, and artifacts is an evolving area of the law (2) with significant social, scientific, cultural, and monetary implications. (3) Moreover, after centuries of international development and application, (4) it remains an unsettled and disputed area of the law. (5) There are countless historic shipwrecks containing valuable treasure and artifacts to which the law must be applied, (6) especially in light of the sophisticated search and salvage technologies now available. (7) In fact, technology is so advanced today that "it [is now] possible to find, visit and remove artifacts from shipwrecks long beyond our power to reach." (8) For example, after resting 12,500 feet below the surface of the North Atlantic from the time of its sinking in 1912, the Titanic was discovered in 1985 nearly 400 miles off the coast of Newfoundland. (9)

With the advent and aggressive use of new technologies, (10) the debate has intensified over whether commercial salvage should be permitted with respect to historic shipwrecks. (11) For instance, many archaeologists consider certain historic shipwrecks to be underwater "museums" containing cultural heritage, (12) while others consider certain shipwrecks, particularly naval wrecks, to be underwater cemeteries that should be protected from salvage or recovery. (13) Salvors, (14) however, dismiss such arguments and contend that archaeologists and other non-profit entities (generally referred to herein as "archaeologists") simply want the opportunity to salvage, recover, or preserve historic shipwrecks themselves. (15) Moreover, salvors allege that if they are precluded from salvaging historic shipwrecks, such shipwrecks will be lost forever because archaeologists lack the requisite funding to perform salvage, recovery, or preservation operations in a meaningful quantity. (16)

In Part I, this Article considers (1) whether historic shipwrecks should be afforded absolute protection as underwater cemeteries, (17) (2) the monetary value placed on historic shipwrecks by salvors, (18) and (3) the struggle between salvors and archaeologists over the proper treatment of historic shipwrecks. (19) Part II discusses the laws of finds and salvage as applied to historic shipwrecks, particularly in light of recent judicial trends, certain federal and state laws, and existing and proposed international treaties. (20) Part III proposes that admiralty courts expand upon the judicially created Archaeological Duty of Care (ADC) as an alternative to the approach now being considered by the United Nations for the management of historic shipwrecks. (21) The ADC imposes certain requirements upon salvors with respect to salvaging historic shipwrecks so as to protect their historical, archaeological, and monetary value. (22) In this last Part, it is also argued that the ADC will preserve the traditional laws of admiralty, the jurisdiction of admiralty courts, and the financial incentives that lead to the discovery of new historic shipwrecks by salvors--all of which the United Nations, among others, is now seeking to abrogate.

  1. HIGH STAKES FOR CONTROL OF HISTORIC SHIPWRECKS AND TREASURE

    1. Shipwrecks as Protected Cemeteries

      Neither history nor the law treats shipwrecks, historic or otherwise, as protected underwater cemeteries. (23) It is argued, however, that salvaging shipwrecks "disturb[s] the final resting places of those who lost their lives in a shipwreck disaster." (24) The historic, social, scientific, and monetary value of historic shipwrecks, however, dictates that they should not be treated as underwater cemeteries protected from salvage or recovery. (25) The decision to recover the H.L. Hunley, a Confederate submarine known to contain the remains of soldiers, underscores the notion that historic shipwrecks should be salvaged and recovered even when human remains are present. (26) Upon recovery, the remains of the Hunley's crew will be studied by a forensic team and then reburied in a military ceremony. (27)

      Moreover, throughout history, shipwrecks have been treated as anything but underwater cemeteries. (28) The existence of the laws of finds and salvage illustrates that shipwrecks, historic and otherwise, are viewed under the law as property subject to salvage and recovery. (29) In fact, "the general presumption under the maritime law of salvage [is] that historic shipwrecks are in marine peril and need to be salvaged so that they can be returned to the stream of commerce." (30) Moreover, it should be remembered that while cemeteries are the intended resting place for the dead, shipwrecks are not.

      As noted, naval shipwrecks are regarded by some as underwater cemeteries that should be protected from salvage and recovery. (31) For example, in June 1993, a diver discovered a German World War II U-boat off of Cape Cod, Massachusetts. (32) Germany, concerned with preserving the sanctity of the site, argued that the U-boat was a war cemetery and that the bodies contained within the wreckage should not be disturbed by salvors or divers. (33) Despite such protests, however, another U-boat discovered in the Potomac River may become an "underwater park" open to divers. (34) Of course, the U-boat would be of even more value and interest to the public and archaeologists if it were recovered, as was the H.L. Hunley.

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

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

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

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

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

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

      The monetary value of many...

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