By Dennis E. Boyle
Or, more specifically, who owns shipwrecks located on the ocean floor? Over the centuries, forces of nature and acts of war have sent countless vessels to the bottom of the sea. These wrecks rarely have items of significant economic value. More often, the cargos they carried consisted of bulk cargo, like coal, oil, grain, or manufactured goods. These cargos are exposed to the damaging effects of water and current, and the corrosive effects of salt and other marine chemicals. The hunt for sunken treasure is a romantic pursuit, and, in most cases, the potential for actually discovering lost treasure is unrealistic. There are, of course, exceptions, but for the most part, the people who explore these sunken vessels are mostly recreational wreck divers who search for artifacts for personal fulfillment. They almost never recover anything that would cover the cost of their equipment or training.
As they risk their lives to explore these wrecks, a question that arises is: who owns these wrecks? Most divers assume that the wrecks are abandoned and not owned by anyone. Every now and then, a wreck may have commercial value justifying an arrest in an Admiralty Court and a commercial salvage effort. Most often, however, the value of the items on the vessel does not justify a salvage claim legally or economically. Who owns these wrecks? There are several potential answers to this question, but in most cases, the answer is most likely “no one”.
As a starting point, every vessel that plies the shipping lanes of the oceans and seas of the world has an owner. Just because a vessel is lost at sea does not mean that the owner of the vessel has surrendered his, her or its ownership interest. In fact, there are people who have “purchased” vessels lying on the sea floor, and in the event these vessels are discovered, they may be able to claim ownership to anything recovered, subject to a “salvage claim” as discussed below. There is no “finders, keepers” rule. If a person loses or misplaces a valuable piece of jewelry, the finder of the lost jewelry does not automatically become the owner.
In order for the finder of a vessel to lay claim to a discovered wreck, the vessel must also be “abandoned”. When a vessel has been “abandoned”, it means that its owner has surrendered any interest the owner had in the vessel. Often, the owner of the vessel will have filed an insurance claim, and, in the process, surrendered any rights it had in the vessel to the insurance company. The insurance company then determines whether the vessel and its cargo are salvageable, and, if it is not, the insurance company will often “write off” the lost ship taking the payment to the insured as a tax loss. Unfortunately, there is usually not a paper trail to follow to determine whether the ship has been formally abandoned. In these cases, the salvor will file a Complaint in an Admiralty Court seeking the rights to salvage the vessel and ownership of anything recovered will allege that the vessel has been abandoned. If no party comes forward to contest that allegation, a court will find the vessel to be abandoned, and abandonment will be legally determined at that time. If a potential owner does come forward, the salvor will nevertheless be entitled to a salvage award.
The Law of Salvage and the Law of Finds
The law of salvage and the law of finds are based upon ancient international principles and are closely interrelated. When vessels are subject to the perils of the sea, those who rescue those vessels, or their cargos, are entitled to be rewarded for the value of the risk they took and their successful efforts. The salvage may be pursuant to contract, i.e., the owner of the distressed vessel or cargo hires a salvor to save or recover lost items for a fee, or a salvor can unilaterally take actions to recover property and then file a complaint in court and have the court determine the value of the risks involved and the efforts undertaken.
The law of finds is somewhat like the law of salvage, except there is no “owner” who can claim the property recovered because the property has been “abandoned”. In the case of abandoned property, the finder will file a complaint in admiralty claiming that the property has been “abandoned” as discussed above. If a claim of abandonment is contested, the court will conduct a hearing to hear the efforts undertaken by the purported owner to maintain ownership. In the case of very old wrecks, there may be no way to determine ownership. In the case of more recent wrecks, the owner may have abandoned a wreck because the costs of recovery were deemed to be too high, or the owner may have transferred his interest when making an insurance claim. These hearings can be fact-intensive inquiries decided by a single nuanced fact.
In most circumstances, recreational wreck divers will not be able to avail themselves of the Law of Salvage or the Law of Finds. The value of most relics from sunken vessels is minimal at best, and the cost of recovery will exceed the value of the items recovered. Since the operation is not commercial enterprise “clothed with the prospect of success”, the Law of Salvage and the Law of Finds will not apply.
Does this mean that the wreck has not been abandoned or that the wreck diver cannot keep the porthole he or she has found and recovered? Certainly not. In most cases, a wreck discovered on the sea floor will have been abandoned; it is just that there is no legal declaration of abandonment as of yet. Since it has been abandoned, the wreck diver can keep what he or she finds. There may be a slight risk that the wreck has not been abandoned, and, if that is the case, the vessel owner could go to court to obtain whatever has been recovered from the wreck. Such an event would be extremely rare (if it has ever happened).
This changes, however, if the wreck diver does discover something of value. These could include gold bullion, precious artwork not destroyed by the sea or other items that have commercial value. If the wrecks are in relatively shallow water, then the wreck diver may indeed have the ability to recover these items and avail himself or herself of the law of salvage or the law of finds.
There are a couple of caveats, however.
The Abandoned Shipwrecks Act of 1987
In the case where an abandoned vessel is located in “state” waters and has historical significance, the vessel belongs to the state, and nothing may be removed from the vessel without the permission of the state. In order for the Abandoned Shipwrecks Act of 1987 (ASA) to apply, however, there are several pre-requisites that must be met.
The shipwreck must have “historical significance”, and it must be “abandoned”. This means that the owner of the vessel must have given up any rights the owner had to the wreck. Another requirement of the statute is that the vessel must be “embedded” in the state’s waters. If the requirements of the ASA are met, the vessel is the property of the state, and the removal of any item from the wreck violates state law.
There are significant gaps in the ASA, however. First, it does not apply to wrecks that sank less than 100 years ago. This means that ships sunk during World War II and after are not protected under the Act. In addition, the ASA only applies to wrecks in “state waters” which are those waters within three nautical miles of the shoreline. These two limitations mean that the vast majority of wrecks are not covered by the ASA.
If the ASA applies, nothing can be removed from the vessel without the permission of state authorities. It may be possible to obtain a permit to remove items from a vessel, or it may be possible to negotiate an agreement to salvage the vessel with the appropriate state authorities. If cargo is of sufficient value, it may make sense to try to trace the ownership of the vessel through court and estate records in an effort to establish the wreck was not, in fact, abandoned. It is best to retain competent legal counsel at the earliest opportunity to determine an appropriate legal strategy.
The Sunken Military Crafts Act
Another exception to the law of salvage and the law of finds is the Sunken Military Crafts Act (SMCA). As its name implies, the SMCA applies to U.S. and foreign military vessels. The statute defines a military craft as a vessel owned or operated by a government and engaged in non-commercial activity at the time it sank. This includes not only warships but also non-military vessels when those vessels are used for military purposes. Foreign military vessels are also covered under the Act. The U.S. Navy, specifically, the Naval Historical and Heritage Command (NHHC) enforces the statute and, in general, allows recreational diving on military wrecks; however, artifacts may not be removed from a site without a permit from the NHHC.
During World War II, thousands of civilian ships were sunk around the world. Most of these ships were civilian owned ships carrying commercial cargo and are, therefore, not subject to the SMCA. In some cases, however, ships were chartered by the United States Maritime Administration (an agency created at the beginning of WWII and abolished in 1950) and carried military cargo to U.S. and allied forces fighting in all theaters of conflict. When a civilian, non-military vessel is discovered, it is necessary to research its ownership and cargo to make sure it is not protected under the SMCA.
There are criminal and civil sanctions associated with the SMCA. The removal of items from any military craft can result in prison time.
Wreck divers should also be aware of the National Marine Sanctuaries Act (NMSA), a statute that authorizes the National Oceanographic and Atmospheric Administration (NOAA) to declare certain areas of the seabed National Marine Sanctuaries. The NMSA was enacted in 1972 to protect marine environment with “special national significance”. As originally envisioned, the statute was supposed to protect unique habitats, but since its enactment, NOAA has taken an expansive view of “special national significance” and has now placed more than 172,000 square miles of U.S. seabed into sanctuaries, an area greater than the size of the entire State of California and including all of the Great Lakes. NOAA is currently considering the expansion of the marine sanctuary system to include thousands of additional square miles.
Once an area is designated as a Marine Sanctuary, all shipwrecks discovered or undiscovered (with limited exceptions) become protected, and no artifacts can be removed from a wreck without a permit. NOAA regulations, however, express a preference for in situs protection of artifacts, and it is unlikely that Agency would issue a permit to wreck divers unaffiliated with a museum or educational institution.
Violations of NOAA regulations can also constitute violations of the U.S. Criminal Code, and the unauthorized removal of items from Marine Sanctuaries can result in prison sentences.
Application of Federal Laws to Wreck Divers
Who owns the seafloor? In the case of marine sanctuaries or military vessels of the United States, it is the federal government. In the case of abandoned vessels located in state waters, it may be the state in which the vessel is located. The vast majority of sunken wrecks, however, are not located in these waters and are therefore not located in state waters or marine sanctuaries. Relatively few vessels qualify as military crafts. If the vessel is a “wrecked and abandoned” vessel, it belongs to no one, and any wreck diver who finds an artifact is entitled to keep that artifact.
If the wreck is a valuable wreck, however, the individual who discovers it may wish to file a legal action in admiralty. The process is not complicated. Once the wreck has been discovered, the salvor will initiate a suit against the wreck claiming salvage rights. The vessel is then “arrested”, meaning that no other person may recover property from the wreck. The salvor will be designated as the “salvor in possession”. The recovered property is then filed with the court. If no party asserts a claim against the property recovered, the court, under the law of finds, will award ownership of the recovered property to the salvor. Once the salvage has been completed, the wreck reverts to being lost and abandoned.
A question that sometimes arises is: can a wreck diver obtain a maritime lien over a wreck? Remember, the purpose of salvage is commercial in nature. There must be a valuable cargo to be recovered, and the salvor must have the ability to successfully recover the cargo. There are cases where wreck divers have obtained a maritime arrest to recover cargo. In the case of the S.S. Andrea Doria, an Italian passenger liner that sank after a collision in 1956, John Moyer obtained a maritime lien and successfully recovered frescoes from the vessel, items of significant commercial value. The famous wreck diver John Chatterton obtained a maritime lien for the S.S. Carolina, a passenger liner that was sunk by a German submarine in 1918. Chatterton was successful in recovering the ship’s safe.
These cases, however, are exceptions to the general rule. In most cases, artifacts that are recoverable might consist of a ship’s bell or a porthole. These items generally do not have sufficient commercial value to justify the cost of their recovery and are therefore merely souvenirs to remind the diver of an interesting dive. They may rise to the level of conversation pieces, but they are not the type of commercial cargo for which the law of salvage and the law of finds were created.
There is a danger in allowing recreational dive boat operators or wreck divers to lay claim to wrecked and abandoned vessels with no commercial value. If there is no prospect of a successful salvage, the recreational dive boat operator can claim exclusive possession of the wreck until the claim is challenged. Since there is no financial incentive to spend money in a legal action that results only in a loss, the claim can continue indefinitely. The result is the denial of wreck diving opportunities to the diving community as a whole.
Since time immemorial, no one has owned the ocean. When there is nothing of value to recover, the wrecks that litter the ocean floor are there for anyone to find and explore.