A STUDY IN SALVAGE.

• Author: Hidalgo, Jessica Victoria

TABLE OF CONTENTS I. Introduction 50 II. The Curse of the Redhead 52 A. Yo Ho (A Pirate's Life For Me) 52 B. Dead Men Tell No Tales; Aye, But Dead Ships Do Have Some Tales To Tell 53 III. The Law of Salvage Versus the Law of Finds 55 A. What is a Shipwreck 56 B. Admiralty Procedure and Jurisdiction over Shipwrecks 56 C. Proving a Wreck's Identity 59 D. Abandonment 60 E. The Law of Salvage 62 1. The Ancient Tradition of Salvage 62 2. The Two Kinds and Three Elements of Salvage 62 3. The Result of Salvage 64 4. The Salvor's Award 65 F. The Law of Finds 66 1. The Ancient Tradition of "Finders Keepers" 66 2. The Three Elements of Finds 66 3. The Result of Finds 67 G. When and Why Courts Apply Salvage or Finds 68 H. When Salvage or Finds May Not Be Applied 68 IV. Hoist the Colours and Treasure, Me Hearties 70 V. Conclusion 75 I. INTRODUCTION

Fictional stories such as Treasure Island (1) and Pirates of the Caribbean, (2) television series like Expedition Unknown, (3) and real-life explorations of famous shipwrecks like the VASA warship, (4) the ANT1KYTHERA, (5) the R.M.S. TITANIC, (6) and the QUEEN ANNE'S REVENGE, (7) showcase humanity's inexplicable and hopeless fascination with the pursuit of adventure, the unknown at the bottom of the sea, and treasure beyond our wildest dreams. Advances in technology and maritime archaeology have increased our accessibility to ancient wrecks and, in turn, fueled our eagerness to rediscover ships once thought lost to the sea. (8)

Of course, legal implications quickly abound after the discovery of

shipwrecks. Many of these suits seek to resolve ownership rights to the wreck and the treasure found on the sea floor. The law of salvage and the law of finds control in these cases. However, while both laws derive from ancient tradition, federal courts often conflict on their application, even in similar cases.

This paper addresses many of these issues by presenting the law surrounding the discovery of a shipwreck. Part II will recount the swashbuckling, hypothetical tale of an 18th century pirate and the recovery efforts of the ships she sank. Part III will give a detailed overview of the law of salvage, the law of finds, and other legal issues which may arise in the recovery of ancient or historical shipwrecks. Finally, Part IV will apply the law to the pirate captain's tale and propose the correct solutions to the problems presented therein.

2. THE CURSE OF THE REDHEAD

   1. Yo Ho (A Pirate's Life For Me) (9)

      Throughout the late seventeenth and early eighteenth centuries, roving pirates terrorized the crystal blue waters of the Caribbean. (10) This Golden Age of Piracy gave rise to many infamous buccaneers: Blackbeard, Anne Bonny, Amaro Pargo, and Sir Francis Drake, to name a few. But only one pirate's name was whispered in fear by superstitious sailors and soldiers alike: the infamous (and fictional) Scarlett Mortdelamer. An encounter with the French pirate captain, known as the "Redhead" on the high seas, and her fleet of commandeered English merchant ships, the OPHELIA, the MIRANDA, and flagship VIOLA, (11) was considered as good as a date with death.

      In 1717, the Redhead set her sights on the NUESTRA SENORA BE LA NIEVE, a private Spanish frigate transporting a hoard of treasure from the Canary Islands to the new world at the request of the Spanish monarchy. This treasure consisted of 5,000 gold bars, chests full of emeralds, rubies, and sapphires, and several dozen royal tiaras. Little did the Redhead know, the dangers of piracy in the Caribbean, and the value of the treasure onboard, had forced the crew of the NIEVE to take preemptive measures--requesting an escort by the Spanish warship, EL ESPIRITU INTREPIDO, helmed by Capitan Salazar Santos. The INTREPIDO itself also held a fortune in the form of a cache of weapons and sixty-seven bronze cannons of the highest quality.

      On March 18, 1717, the Redhead's fleet cornered the NIEVE and INTREPIDO in the international waters of the Atlantic Ocean off the coast of Haiti. Each of the Redhead's ships were outfitted with a dozen stolen English and French cannons, which she ordered to be used in full effect in the ensuing battle. Afterwards, scholars would claim that the cannon blasts could be heard as far away as Tortuga.

      During the battle, the NIEVE crew abandoned the vessel out of fear, allowing the Redhead's crew to successfully invade the ship and steal the treasure. However, as Capitan Santos ordered the INTREPIDO to begin firing on the NIEVE--determined to sink the treasure rather than hand it over to the pirates--the pirate crew quickly evacuated, splitting the treasure between two row boats destined for two of the Redhead's three ships. One group successfully unloaded their chests of jewels onto the VIOLA, but legend conflicts as to which ship received the other chest containing the 5,000 gold bars.

      When the cannon smoke cleared, only one ship was left afloat: the Redhead's flagship, VIOLA. During the battle, the OPHELIAs hull had been splintered by a cannon ball and tragically sunk to the ocean floor with the crew still on board. Upon the loss of her ship, the Redhead ordered her remaining crew to evacuate the half-sunk MIRANDA as well and, in a brilliant, possibly insane feat of maritime battle tactics, put the empty ship on a direct course for the INTREPIDO. The unmanned ship collided with the INTREPIDO quite anticlimactically, but the damage was done nonetheless. Capitan Santos ordered his crew to keep fighting, but rising waters from the gaping hole in the hull forced them off the vessel and into their crowded rowboats. Capitan Santos was forced to watch from his tiny boat as the famed INTREPIDO sank to the briny depths below while the Redhead's laughter at his defeat rang in his ears.

      In total, four ships, 5,000 gold bars from the NIEVE's treasure, and all of the INTREPIDO's valuable weaponry were lost, and Captain Scarlett Mortdelamer, the infamous Redhead, sailed away, quite a bit richer and already looking for new treasures to pillage and plunder and adventures to be had beyond the horizon.

   2. Dead Men Tell No Tales; Aye, But Dead Ships Do

      Have Some Tales To Tell

      In July 2017, after years of careful research and exploration, Carina Holmes and James Hooper, two maritime archaeologists operating the Poseidon Underwater Research League (PURL) discovered two shipwrecks in international waters off the coast of

      Haiti. Based on their location, the accounts of the battle of 1717, and the proximity of the wrecks to each other, they believed these to be the collided MIRANDA and INTREPIDO. Holmes and Hooper immediately began to explore the site. Because of its low-impact collision and minimal damage to its hull, besides the gaping hole in the port bow, the INTREPIDO was mostly intact. The MIRANDA, on the other hand, had obviously sustained heavy cannonball fire that had been exacerbated by the subsequent collision and the three hundred years it had been subjected to the underwater elements. Because of this, the wreck was in danger of being swept away by the current. PURL quickly implemented a preservation strategy and began raising artifacts from the wreck. They found five French cannons and two English cannons, and determined the techniques used in forging the nails found in a piece of planking proved the ship to be English in origin. (12) Shortly thereafter, PURL recovered over three thousand gold bars from the wreck. They also began removing cannons from the other ship they believed to be the INTREPIDO. They were able to find forty bronze cannons, chests of cannon balls, and several 18th century rifles, consistent with ledgers detailing what was stored on the INTREPIDO at the time of its wreck. However, Holmes and Hooper were then forced to pause their exploration for several months due to bad weather and technological issues.

      In August 2017, Abigail Gates and Henry Anderson, two professional shipwreck explorers and co-owners of the National Oceanic Treasure Seekers, LLC (NOTS) discovered two more wrecks not far from the PURL site. The two explorers found three English cannons and one French cannon at one site, as well as the nearly-intact hull of a Spanish-made frigate and several empty crates at the other wreck site. Independent of Holmes and Hooper's discovery, NOTS determined these wrecks were likely the OPHELIA and the NIEVE.

      In September 2017, NOTS independently discovered the wreck believed to be the MIRANDA and began an exploration.

      They recovered one French cannon and two English cannons, as well as one hundred and one gold bars.

      In October 2017, PURL filed an in rem petition with a federal district court sitting in admiralty jurisdiction, claiming ownership and title to the MIRANDA and the INTREPIDO, as well as ownership of all artifacts brought up or that will be brought up from the sea floor. In the alternative, PURL argued that all artifacts be placed in possession of the vessel, therefore entitling the organization to a salvage award in the amount equal to the expenses incurred during their exploration. (13) They also deposited two cannons from each ship, as well as one gold bar, with the court to satisfy constructive in rem jurisdiction over the two wrecks.

      In November 2017, NOTS embarked on a second expedition to the MIRANDA. After several days of exploration, Gates and Anderson learned of PURL's investigation at the site and immediately filed a similar petition asking for ownership or, in the alternative, a liberal salvage award, for the OPHELIA and the NIEVE, as well as controverting PURL's claims of ownership or salvage over the MIRANDA. Additionally, they deposited two gold bars and one cannon with the court to satisfy constructive in rem jurisdiction.

      The Kingdom of Spain then intervened in the suits, claiming ownership of the wreck of the INTREPIDO, and all artifacts found on board, based on the sovereign immunity of the warship. (14) Both PURL and NOTS opposed Spain's claim. As is standard...