Marian Leigh Miller, Underwater Cultural Heritage: Is the Titanic Still in Peril as Courts Battle Over the Future of the Historical Vessel?

• Publication year: 2006

UNDERWATER CULTURAL HERITAGE:

IS THE TITANIC STILL IN PERIL AS COURTS BATTLE OVER THE FUTURE OF THE HISTORICAL VESSEL?

INTRODUCTION

More than two miles beneath the surface of the Atlantic Ocean, a ninety- four-year-old ship is the venue of a young couple's wedding. The bride and groom are the lucky winners of a contest inspired by a movie about two young lovers who were passengers on the ship's ill-fated maiden voyage. Transported to the venue by submarine, the couple exchanges vows on the bow of the infamous ship, the Titanic.¹These two tourists are not the only visitors the Titanic has seen in the last twenty years. There have been many treasure salvagers and other guests to the ship who have caused an accelerated deterioration of the ship due to "visitors banging into and tearing at the hull."²

Are travelers allowed to play on the deck of the Titanic as if they are paying passengers on a regular ship? Who owns this historic vessel? Do the remains of the ship belong to humanity because of their cultural and historic value? Or are the remains a final resting place-a burial ground-for deceased passengers who should be left to rest in peace? The international community has been struggling with these issues since the Titanic shipwreck was discovered in 1985.

The Titanic is not the only historic wreck that has captured the attention of the international community. There are approximately "three million undiscovered shipwrecks scattered across the world's oceans."³Robert Ballard, leader of the expedition that discovered the Titanic, asserts that the

"deep sea is our largest museum of antiquity" and that "hidden treasure of ancient shipwrecks, bearing tales of long-ago civilizations, awaits discovery."⁴

Many of these wrecks have gone undiscovered because treasure hunters did not have the technology to find these underwater treasures. Now, new technology

"allows extraordinary access to the ocean depths for determined and well- financed treasure hunters."⁵High-tech equipment, including "side-scanning radar, designer metal detectors, and even space-based remote sensing equipment are fast becoming standard issue."⁶

Partially due to these developments in technology, activity among treasure hunters, archaeologists, and salvagers has increased and the "issue of title to sunken ships and to the artifacts found on these vessels has become more prominent."⁷The issue is international in scope; many of the shipwrecks are now deemed "underwater cultural heritage" (UCH)⁸and are seen as "an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations, and their relations with each other concerning their common heritage."⁹Since these important relics of human history are underwater, a location vulnerable to the harshness of the sea, many nations have expressed the need for international agreements regarding the preservation of this heritage.

Although the Convention for the Protection of the World Culture and Natural Heritage recognized the "duty of the international community . . . to co-operate in the conservation of a heritage which is of outstanding universal value" in 1972,¹⁰many of the duties of ensuring protection and conservation lie "primarily with the State in whose territory it is situated."¹¹Even if the duty of protection is placed upon one State, there are many competing interests concerned with the property. The two main groups vying for different treatments of historical shipwrecks are the archaeologists and the treasure salvagers.¹²The common view of archaeologists is that shipwrecks are valuable because they are a means to study past cultures and should be preserved from salvage operation and exploitation.¹³On the opposite side of the argument are treasure salvagers who value shipwrecks for their potential economic profit.¹⁴The treasure salvagers argue that to take away the economic incentive of salvaging shipwrecks would "fail to recognize the interests of the vast majority of the constituencies of this resource."¹⁵Also, preventing salvage rights in historical wrecks would decrease the economic incentives for locating shipwrecks, and this would allow many sites to go unfound and be lost to the oceans forever.¹⁶

Recognizing the international importance of this debate, the United Nations Economic, Scientific, and Cultural Organization (UNESCO) held a conference on the protection of UCH in 2001.¹⁷On November 2, 2001, the United Nations General Assembly adopted the resulting Draft Convention with eighty- seven states voting in favor of it.

Unfortunately, the Draft Convention is largely ineffective due to the ambiguity of the rules and the failure of the drafters to acknowledge economic issues associated with UCH.¹⁸Although the United States is currently profoundly involved with these UCH issues, it has not ratified the treaty.

Instead, the U.S. judiciary has applied maritime law along with other relevant treaties to UCH issues. At the forefront of this application of maritime law is the United States District Court for the Eastern District of Virginia, which has been occupied with the case R.M.S. Titanic, Inc. v. The Wrecked and

Abandoned Vessel since 1996.¹⁹

Because the Titanic is a twentieth century ship and the twentieth century is well documented, the Titanic has little to offer to scholars.²⁰However, the judicial treatment of the Titanic property will significantly impact the fate of many other historical shipwrecks. The Titanic is becoming the "sacrificial lamb" as this case charges ahead and sets important precedent as to how the U.S. courts are going to handle historical shipwrecks in international waters in the face of conflicting ideologies, national laws, and international laws.²¹

Part I of this Comment examines the historical background of UCH, beginning with a brief history of the law of salvage followed by a discussion of how the law of salvage interacts with modern views of UCH. Part II explores the international and national laws concerning UCH. Part III introduces the specific issues in the R.M.S. Titanic case and the court's treatment of the wreck. Part IV analyzes the appropriateness of the court's decisions and lays out key points for future decisions.

I. BACKGROUND REGARDING UNDERWATER CULTURAL PROPERTY: WHAT LAWS APPLY TO SUNKEN TREASURE?

The Council of Europe²²was the first to define the concept of UCH as "all remains and objects and any other traces of human existence located entirely or in part in the sea . . . or recovered from any such environment."²³Many items recovered from the oceans are of great archaeological importance.²⁴The legal significance of this cultural property is two-fold: first, the property is usually international in significance and second, the property is found underwater and is therefore subject to the law of admiralty.²⁵The international character of the property is inevitable due to the nature of seafaring which often involves international travel "during which a vessel from one state or nation may pick up cargoes, passengers, and even crew from other states."²⁶As a result, a shipwreck is likely to contain artifacts from a number of nations, and "the story and archaeological and historical information it can yield is distinctly international."²⁷This international attribute of UCH leads to many different interests groups from all parts of the world competing for the rights to this property. This issue will be discussed at the end of Part I.

Since UCH, often in the form of property, is submerged in water, it is subject to the law of admiralty, which is "comprised of both the law of salvage and the law of finds."²⁸To fully examine the effects of admiralty law on UCH found in international waters, this section first examines historic salvage and then the law of finds and the law of salvage. Additionally, this section examines the two competing interest groups, the salvors and the archaeological community.

A. Historic Salvage

Historic salvage is "the pursuit and recovery of shipwrecks whose value is partially . . . derived from their historic stature."²⁹Historic salvagers search for ships that sunk many years ago. The value of this property comes from its historical and cultural significance.

The expertise level of the historic salvager is important. Inexpert salvage "almost certainly will damage or destroy a valuable historical record."³⁰In doing so, inexpert salvagers not only threaten archaeological preservation of the wreck but also jeopardize the commercial value of the artifacts recovered.

When comparing the ideas of historic salvage to commercial salvage, the significance of historic salvage emerges. Commercial salvagers make efforts to save ships and cargo from imminent danger, such as fire.³¹This type of rescue calls for salvager action that is relatively close in time to the time of the ship's peril. In contrast, historical salvage calls for "rescue" not at the time of the peril but in the distant future when all that remains is wreckage and artifacts.

Although commercial salvage and historical salvage are different in nature, both are profit ventures.³²Recovering ancient wrecks has grown into a "multi- billion dollar activity for U.S. maritime interests."³³Historic salvagers rescue underwater cultural property (UCP)³⁴with the notion that they will be rewarded for their efforts. The nature and amount of the reward is a difficult problem. Usually, a commercial salvage award is based on the profits made from the sale or use of the saved property. ³⁵The cultural value of the historical salvage makes the determination of the reward difficult. Historical salvage is concerned with recovering artifacts for archaeological study and public appreciation.³⁶Thus, the artifacts are rarely traded in the commercial realm.³⁷Because the economic benefit is not likely found in direct sale of artifacts into commerce, historic salvagers look to more creative ways of getting an economic return for their rescue efforts.³⁸...