"The Abandoned Shipwreck Act is a paper tiger now," says Peter Hess, an admiralty attorney
in Wilmington, Delaware who specializes in litigation involving historic shipwrecks and
aircraft salvage. "As found with the Brother Jonathan, the law has no teeth, because
a sovereign state that does not have possession of a shipwreck site—in a national park,
say—does not have the power to preclude a salvor from doing recovery. The Supreme Court
made that clear."
Sovereign immunity, which precludes jurisdiction over publicly owned property by
individuals or other countries, may still apply to federal if not state governments. The
U.S. Navy, for instance, claims ownership of the Confederate warship CSS Alabama,
which sunk off the coast of France in 1864, and even went so far as to appropriate without
compensation a bronze bell from the ship that a New Jersey antiques dealer had purchased
years ago from an English dealer. In December 1998, the Spanish government asked a U.S.
federal judge to revoke a salvor's rights to salvage the remains of two centuries-old
Spanish warships, the La Galga and the Juno, which went down off the coast
of Virginia in 1750 and 1802, respectively. And, of course, France maintains that it
owns La Belle.
A controversial treaty
While these cases are still under litigation, countries that claim lost ships may soon
get major support from an international treaty now being drafted at the United Nations
Educational, Scientific, and Cultural Organization (UNESCO). The treaty would charge
governments with responsibility for jurisdiction and management protection of any
non-military ships that are found within 200 miles of their shores and are more than
a century old. So, under the treaty, if a sunken Spanish merchant ship were found within
200 miles of New York City, for example, the U.S. would notify Spain to determine their
interest in the site. If they had an interest, the two nations would sign a cooperative
agreement about managing and protecting the site. If they evinced no interest, the U.S.
would still be charged with protecting the site, even if archeologists had no immediate
plans to excavate it.
The Confederate warship CSS Alabama
"The treaty leaves no room for private-sector recovery, even for ships like Titanic
that lie beyond the 200-mile limit," says Hess, who has been a wreck diver for 22 years.
"UNESCO realizes that there's no legal grounding for nations to lay claim to such wrecks,
so they say that salvors can recover them and their artifacts but not land with them.
So one can have, for instance, a Titanic museum, as long as it stays at sea!" With
such restrictions, Hess notes, the new treaty would provide an enormous disincentive for
salvors to report finds. Rather, he says, it will encourage a "rape-and-escape"
attitude.
Hess believes there is room for compromise. He cites the finding of the SS Carolina,
a passenger steamship sunk by a German U-boat in World War I off the coast of New Jersey.
The finder, Hess says, has strived to record everything and make results accessible to the
public, including setting up an SS Carolina "virtual museum" on the Web, with
historical articles, photographs, and contemporary newspaper articles. "It's the wave of
the future," he says, "because we can have information on a wreck site on one repository
accessible by anyone, rather than housed in a museum archive that only Ph.D.'s are likely
to visit."
Carrell feels differently. "The UNESCO treaty is the best chance we have on a worldwide
basis to ensure appropriate use for what they call 'underwater cultural heritage,'" she
says. "The purpose is not to put private industry out of business but to provide a
baseline level of protection and documentation for cultural resources. This type of
protection is generally enforced worldwide on land sites. The treaty would simply
extend that ethic to the seafloor and underwater cultural heritage."
The passenger liner Titanic
The UNESCO agreement would also prohibit the sale of artifacts, Carrell says, removing
the urgency to excavate a wreck for a quick return. However, it would not prohibit the
sale of replica artifacts or the production of books, movies, or traveling exhibits.
"These are perfectly acceptable means of generating 'profit' for investors," Carrell
says. "The better the archeology, the better the movie or exhibit, so both groups have
the same goal: the search for knowledge."
Of course, the treaty would give France ownership of La Belle, which Carrell helped
to excavate for the Texas Historical Commission (see Stories in the Timber).
While she admits to a feeling of being pulled in two directions, Carrell says that
current negotiations between Texas and France simply would have started sooner rather
than later, with the desired result being, she says, "an enhanced archeological and
public outcome."
Until such time as the treaty comes into effect, however, interested parties must
solve their own problems, as Texas and France are now doing. Larry Oaks sums up the
THC's position: "The Counsel General of France verbally said that France is not
interested in retrieving the resource but only wants to be involved in conservation,
exhibits, and loaning. We want to work toward an amicable solution but are unwilling
to accept their position without lawyers in maritime law to determine our real
interest as far as Texas is concerned." Alas, even among the least disputatious
parties, the battle for who owns lost ships wages on.
Peter Tyson is Online Producer of NOVA.
Photos: (1) Courtesy of Corpus Christi Caller-Times; (3) Corbis/David Lees;
(4) Peabody Essex Museum; (5) Courtesy of the Zwaanendael Museum; (6) Collection of the
Milwaukee Public Library/Wisconsin Marine Historical Society; (7) Courtesy of San Francisco
Maritime NHP, Doris Chase Collection and the California State Lands Commission; (8)
Courtesy of William Stanley Hoole Special Collections Library, The University of Alabama;
(9) courtesy of Harland and Wolff.
The Gold Rush steamer Brother Jonathan
The Confederate warship CSS Alabama
The passenger liner Titanic