All Commentary
Thursday, June 1, 1989

Shipwreck Legislation: Legality vs. Morality

Gary Gentile, a professional diver, writer, lecturer, and photographer, is the author of several books, including Advanced Wreck Diving Guide and Shipwrecks of New Jersey.

Law is a reflection of society’s code of morality. It is universally agreed among the cultures of man that murder, rape, and other crimes of assault need be dealt with severely, and it is the primary purpose of government to protect its citizens from wanton abuse and foreign aggression.

As civilization becomes more complicated, it requires finer distinctions in legal process, and more exact definition of transgression against individual rights. The Ten Commandments were a good starting point for biblical man, but the evolution of society has provoked an evolution of the law that rules it. Since the latter is dependent upon the former, it necessarily lags behind the cultural ethic, and often works in direct contradiction to the precepts it is supposed to support.

Admiralty Law and Salvage

That all property is owned by someone seems a simple statement. Yet there comes a time in the existence of every piece of property when its ownership no longer can be validated. Some things are discarded, some abandoned, some lost, and some stolen.

Items thrown away can be legally and rightly picked up by anyone discovering them: trash pickers abound in every community, trucking away old furniture for resale, broken appliances for parts, newspapers for recycling. People are glad to have those things taken. Likewise, abandoned automobiles are towed away in order to clear the streets for traffic. No one complains, because these articles have no owner.

On the other hand, if my car experiences mechanical difficulties on the highway and I am forced to leave it to seek help, no one may take it in my absence, or help himself to its parts. By separating myself from my possessions, I have in no way given up my claim to ownership. On the sea similar rules apply, although with some necessary distinctions.

Despite beliefs to the contrary, a ship abandoned in peril is not without proprietorship. Those on board forced to relinquish control of their vessel do not give up title, any more than I do with my car on the road. On the other hand, while a disabled vehicle is in no danger from the elements, a crippled ship is at risk of wrecking or sinking, a condition which significantly decreases its value to its owner, perhaps to nothing. In this case, great latitude is permitted in the common law of salvage to encourage salvors to rescue the vessel and any floating debris from otherwise total loss.

The salvage firm makes an investment from which it can recoup its expenses only upon successful completion of its task. The adage in the business of “no cure, no pay” is a curt summary of the hazards of marine salvage. And, since the original owner of the imperiled ship would have lost everything but for the intervention of a ready and skillful outfit willing to take a chance on eventual profit, insurance syndicates and admiralty courts are generous with salvage awards. If they were not, it would not pay salvage firms to keep tugs and crews on alert. In the end, it is the best way for underwriting agents to reduce their losses. The owner, it is understood, receives full payment to the limit of his coverage.

Taken a step further, even should the ship sink, the owner is no more dispossessed of his belongings than I would be should a rain storm surround my car with a puddle. The depth of water does not transfer title of either the ship or its cargo to an enterprising profiteer, and one who removes goods or ship’s appurtenances at this stage is wrongfully relieving another of his property. Neither does a disaster taking place in international waters sanctify such action—being out of reach of a law-enforcement agency does not imply that one is beyond the bounds of morality. Theft is theft, despite venue and without gradation.

Eventually, however, property may be legally abandoned. This occurs first when the insurance underwriter concludes that the ship and cargo are not recoverable with any degree of economic feasibility, and voluntarily relinquishes ownership. At that time anyone can lay claim and attempt salvage—at his own expense, and without any obligation or responsibility incumbent upon the original owner.

Barring this, a lost or sunken ship becomes “derelict” when sufficient time has passed during which the owners have shown no intention of recovery. In the navigable waters of the United States, this period is 30 days. In international waters, the duration is somewhat nebulous. However, it is at least as long as the settlement of insurance claims. But when in doubt, the underwriter should be contacted. No response to the query can be cited as an indication of abandonment.

Within days of the loss of the Marine Electric off the Maryland coast in 1983, a local diver took it upon himself to perform light salvage (removing valuable electronics), claiming the ship was abandoned. Meanwhile, the insurance company was investigating the cause of sinking and the possibility of total salvage of the vessel. The actions of the local diver hindered the overall examination by the real owners. This is equivalent to a street gang’s removing the tires from my car while I am gone for help, or while the police are investigating a traffic accident.

No thought was given to the rightful owner, and the myth that anything lost at sea immediately becomes the property of the finder is perpetu-ated by the mentality of people who know that the coin can never be reversed. That is, they will never own a ship, and can never be on the losing side. So, they try to believe that they have a right to take something which does not belong to them.

In keeping with the basic premise of admiralty law, “A claim for a salvage award requires that three elements be shown:

(1) A maritime peril from which the ship or other property could not have been rescued without the salvor’s assistance.

(2) A voluntary act by the salvor—that is, he must be under no official or legal duty to render the assistance.

(3) Success in saving, or in helping to save at least part of the property at risk.”

Admiralty salvage laws have been enacted with much forethought as to the justice of such situations, and have been working justly for hundreds of years.

Who Owns Abandoned Shipwrecks?

Wreck diving isn’t new. It goes back to before the time of Christ, when salvors practiced breath-holding to recover goods from sunken merchant vessels. They were paid according to working depth, much the same as today.

As long as man has been plying the waves he has been losing ships. And as long as valuables have been lost, divers have been willing to hazard the risks to recover them. Today, with increased technology, the danger has been reduced to an inconsiderable level, and there are millions of divers exploring the oceans. Not all of them are interested in hard-core salvage, but hardly any can conceal a certain degree of fascination with the lore of shipwrecks.

Add to this man’s insatiable desire for possession, his fascination with the collection of raft-ties, his predilection for accumulating wealth and garnering mementos of his accomplishments, and we have an instinctive urge to assemble and exhibit the fruits of man’s labor and to vaunt his prowess. Souvenir shops thrive on these basic human traits.

Man underwater continues to be the same. From the reefs he collects shells, from the wrecks he collects artifacts. But what right does he have to do this?

It already has been shown under what conditions a shipwreck may become the spoils of the finder, yet there are mitigating circumstances where this is not true, as well as times when the finder’s rights are usurped by government.

U.S. military vessels are never abandoned simply through the passage of time: they must be officially stricken from the Navy list. This is the procedure when a ship is scrapped, or when it is sunk and the Navy has completed or decided against salvage. Otherwise, they remain as fully commissioned ships of the fleet, a kind of limbo status that grants immunity from foreign encroachment. In such cases each vessel technically becomes a little piece of America, wherever it may lie, a steel monument honoring the dead, and is as sacred as the Arlington National Cemetery. This is also true of foreign, even enemy, ships lost in U.S. waters.

Of course, there is nothing wrong with visiting these grave sites—as there is nothing wrong with visiting the war graves at Arlington. But differences of opinion arise when the site is disturbed. Removing bones and skeletons from a shipwreck is equivalent to grave robbing, say those who sanctify dead bodies. Recovering parts of the ship is like dismantling Arlington’s fences and tombstones, say others. For some, even touching the rusted hull is like sticking your hands into the earth over a coffin. There are as many different modes of thought as there are people, including those who believe that respect for the dead is more a matter for the heart, and how one feels, than the location or condition of human remains. But this is a matter of philosophy.

The analogy breaks down when it is extended to include the thousands of nameless freighters, tankers, and sailing vessels of old. Some would have us treat every sunken ship as the final resting place of anguished human souls, and think that nothing should be disturbed. This is something like leaving every crashed car at the site of its roadside collision.

Territorial rights extend in most countries to three miles, a distance left over from a time when defensive shore batteries had limited effective range. Thus, a foreign vessel could approach enemy shores no closer without fear of being fired upon. In the U.S., the states are granted dominion over this area, while up to 12 miles is the contiguous zone under Federal control. The 200-mile economic zone is designated to keep foreign nations from fishing off American reserves. All inland lakes and waterways are state controlled.

A curious situation arises in the U.S., however. Unlike a communist society in which all land, indeed everything that exists, is held by the state, the Constitution of the United States guarantees respect for property rights. This is the basis for a free, capitalistic society: the individual maintains control over his possessions, earns the wealth that is the fruit of his labors, and retains ownership of all his discoveries, inventions, creations, and finds.

This last point is covered under the “law of finds,” granting to the finder title to found property which falls, for whatever reason, under the heading of abandoned property. The law reads: “The general rule in the law of finds is that the determination of the finder’s right to abandoned property is unaffected by the ownership of the land on which the property is found.” In other words, a prospector who locates gold on public land stakes a claim and becomes the owner. By the same token, if he happens across abandoned property, he still can take possession. But a problem does arise concerning ownership of the land.

The Diver vs. The State

Let us delve into some actual court cases to perceive how the legal system is handling specific circumstances.

In the much publicized case of Treasure Salvors Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 1981, the state of Florida confiscated all artifacts recovered by treasure hunter Mel Fisher from the site of the Atocha. State officials ignored the fact that the wreck wasn’t within state jurisdiction: it was beyond the three mile limit. Instead, they issued warrants for the seizure of all property Fisher retrieved from the seabed, without offering any compensation. It took years of costly litigation before a Federal court finally ruled that “title to abandoned property vests in the person who reduces it to his or her possession.”

In Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 1985, the issues were more complicated. Klein accidentally discovered a shipwreck while diving in Biscayne National Park. Subsequently he recovered artifacts, and brought action to confirm his title to the wreck and its cargo, or at least to gain a salvage award for his efforts. The judges hearing the case filed dissenting opinions.

On the one hand it was found that, first, since the United States was “the owner of the land on and/or in which the shipwreck is located, it owns the shipwreck.” Second, despite the fact that the Park Service was unaware of the location or even of the existence of the wreck, “it was certainly capable of ‘rescuing’ the property at that time without the plaintiff’s assistance.” Third, and most valid, “The articles removed from the shipwreck site were not marked or identified so as to preserve their archaeological provenience,” and “the plaintiff’s unauthorized disturbance of one of the oldest shipwrecks in the Park and his unscientific removal of the artifacts did more to create a marine peril than to prevent one.”

On the other hand, it was admitted that “the government’s argument that no marine peril existed ignores the reality of the situation,” since the wreck “is still in peril of being lost through the actions of the elements,” and that the “plaintiff performed a highly valuable service simply by locating the shipwreck, and should be compensated accordingly.”

In Frank Chance, Paul Chance, and David Topper v. Certain Artifacts Found and Salvaged from The Nashville a/k/a The Rattlesnake, 1984, the three plaintiffs located the Civil War side-wheel steamer on a sand bar in the Ogeechee River. They applied to the state of Georgia for an excavation permit. Request was denied. Plaintiffs performed diving operations anyway, until caught and ordered to cease and to turn over all recovered artifacts.

The court agreed that “under general finds principles, it is well settled that in a suit between competing salvors the first finder to take possession of the lost or abandoned property with the intention to exercise control over it acquires title.” However, their claim to ownership was weakened by the court’s admonition that their argument did “not justify his entering upon the property of another without permission,” and that “backpackers and hikers must often obtain permits before being allowed access to certain of our national parks and forests, even though that land is public and not private.” In addition, “When personalty is found embedded in land, however, title to that personalty rests with the owner of the land.”

These are sticky problems for the courts because they are enjoined to make a distinction between the law of finds and property laws, where embeddedness was originally intended to include mineral rights. Rulings can go either way, depending upon the circumstances. For example, if someone loses a wallet on your front yard, you don’t necessarily assume ownership—it can go to the little boy who finds it. But, if he has to dig up your lawn to get to it, you can claim it as part of your property. Also involved is the adjudication of trespassing.

Contrary to the precepts of a free society, some states are setting themselves up as private landowners in order to appropriate publicly owned property. Where a shipwreck lies at the bottom of a river, they claim sovereignty in the absence of Federal regulation. The rationale is that all waterways are state owned.

Some states are using laws passed for one purpose to further ends which were not intended in the initial enactment. Pennsylvania, for example, will arrest people caught picking up exposed. Indian arrowheads on privately owned land, such as a farmer’s field. This is certainly getting out of control. After all, the purpose of government is to govern, not to own. That is for the individual.

As a ploy for getting laws passed, state legislatures don’t actually prohibit the salvaging of wrecks on supposedly state-owned land, but in-elude the seemingly innocuous requirement of a permit. However, once the states have control, as in the Rattlesnake case, they can simply deny the permit. Thus, the people are tricked into giving away their rights, expecting due process which is not forthcoming. The states are taking control of the people, instead of the people being in control of their states.

Moving to the beaches and three-mile territorial waters, we find further abuses of the common law of salvage, where coastal states enact local laws to pre-empt admiralty law in an attempt to seize the hard-earned gains of treasure salvors —after they have found treasure.

It is interesting to note that in no instance has a state actively searched for a treasure ship. Perhaps they understand too well the immense effort and tremendous cost involved. Instead, they hug the sidelines waiting for a businessman to make a successful find, then pass laws to take away the rewards of his investment. (Remember the Treasure Salvors case.) This is like taking over a manufacturing firm after it has started earning profits. It would appear that right and wrong do not necessarily have anything in common with what is legal or illegal, despite constitutional guarantees of inalienable rights.

Recently, while the states have attempted to annex private property, Federal court judges have wisely and judiciously decided otherwise. The Cobb Coin case (1981) cost its plaintiffs a small fortune in defense, but the 50-page legal decision in the Federal Supplement examined every angle of Federal maritime laws. District Judge James Lawrence King studied the history of the 1715 plate fleet lost in a hurricane off the Florida coast, and disagreed with the state’s claim of ownership, thus:

“The State of Florida is attempting to interfere impermissibly with an ongoing federal matter. Such usurpation of the proper jurisdiction of this Court cannot be tolerated.”

“Florida seeks to claim ownership of the wrecks through legislative pronouncement.”

“The right so to search is a fundamental adjunct to the American principle that the high seas be freely navigable to all seafaring persons to navigate for pleasure or commerce, or otherwise to ply their trades.”

“This country, throughout its existence has stood for freedom of the seas, a principle whose breach has precipitated wars among nations.”

“When property has been abandoned or become derelict, anyone may put himself forward as salvor.”

“The requirement that one be licensed to be able to explore the ocean for abandoned property at the bottom contravenes the maritime law principle that potential salvors be free to explore the open waters.”

“Florida’s system of fixed salvor compensation conflicts with admiralty’s flexible method of remuneration based on risk and merit . . . . The consistent policy underlying admiralty’s salvage awards is that salvors will be liberally rewarded.”

Judge King has written the most inclusive and exhaustive monograph in the history of shipwreck legislation, and has gone to great lengths to weigh both the legal and moral aspects of the case. His conclusions fall back to man’s inviolable rights as stipulated by the Constitution of the United States, and will be precedented material for generations to come. The purpose of salvage law is to encourage salvage in order to “return to the mainstream of commerce goods otherwise buried beneath the sea.”

He has stated flatly that shipwrecks rightly belong to those who find them, work them, and bring back their treasures in whatever form to the mainstream of human awareness.

Plight of the “Wreckless” Diver

Despite this costly victory for individual rights, schemes abound that seek to overthrow the status quo and to apply state dominion over all shipwrecks, whether within territorial waters or without, and to include locations where even the U.S. has no authority.

The intended victims of these machinations are not just big-time salvage operators, but millions of sport divers as well. Most are unaware of the spears being thrust at them, and those who are don’t have the backing or financial resources to protect their interests. Thus, a succession of Federal bills has been in the offing to revert maritime salvage regulations to the custody of the states who, it has already been shown, are not sufficiently responsible in matters of individual rights.

The ploy being used is the “preservation of cultural resources,” a phrase with a highly debatable meaning, depending on who is using it. Perhaps better understood is “national heritage,” being that part of history relating to the founding and growth of a country.

Historic sites such as buildings and battlegrounds are set aside, with interpretive centers erected nearby to guide visitors on a tour of the past. The Liberty Bell, Betsy Ross’s house, and the trenches and bastions of Antietam, where so many soldiers lost their lives, serve as examples of the War of Independence and the American Civil War. Pride and tradition can be viewed at Williamsburg. The fact that tourists flock to these places is proof of the interest they maintain.

Yet, not every battlefield has been preserved, not every ancient building still stands, not every vestige of the past has survived the trash heaps. There is neither the room, nor the money, nor the concern to preserve everything. All we need are examples.

Despite claims to the contrary, the same applies to shipwrecks. Not every barge or tramp freighter has historic or cultural value. Yet the plethora of anti-shipwreck bills continually in Congressional hearings are implicitly all encompassing, and seek to put in the province of local authority every shipwreck in navigable waters, off coastal communities, and those outside the jurisdiction of the United States. This is a gigantic number of wrecks: over 4,000 off the New Jersey coast alone. What are we to do with them all? And why preserve a sunken liberty ship when some of them still ply the seas, or are being scut-tied as artificial reefs?

The question is not whether we need cultural resources, but how many do we need? And how much are taxpayers willing to pay for them? While some don’t like to put a value on history, a modicum of practicality must be applied. We cannot preserve every old wreck just on the chance that a previously unknown piece of information may be retrieved from it. How important is it to the general public to learn how many strakes a Spanish galleon has, or whether the chine was curved? (What is a strake? What is a chine?) Certainly, knowledge of this kind is not going to alter the course of human events, or find homes for the needy, jobs for the poor, and clothes for the destitute. We live in an uneven society, and the merit of everything must be weighed in context.

Free enterprise is the American way, the basis on which this country was founded. Resource management needs to do more than preserve; it needs to utilize.

The locations of most major historic shipwrecks are known through the efforts of speculators diving and doing research in their spare time, and at their own expense. To confiscate a shipwreck after such diligent work is criminal. If you borrowed heavily to buy the materials for your dream house, then built it yourself to your own specifications, you would not expect the government to take it away on the pretext that it was too beautiful for one person to enjoy, and should become public property. Why should a person’s claim to a shipwreck be any different? The individual should not be made to suffer at public expense, as stipulated in Amendment V of the Bill of Rights.

At the same time, archaeologists have a valid concern that valuable information is being lost due to unprofessional salvage. To quote again from the Klein case: “. . . plaintiffs have not taken adequate steps to ensure conservation of the artifacts. While some artifacts have been placed in holding bins, the water in these bins has remained unchanged, which is detrimental to the artifacts. Further, uncontradicted testimony revealed that many items not currently stored in holding cells are piled in the plaintiffs’ backyard where they are subject to random and deleterious exposure to the various elements.”

Yet, while we abhor on a collective level the loss of these interesting artifacts, we lose much more by abrogating individual rights.

Certainly we need to preserve for our children some of the memories and mementos of our past, but does this mean that all Civil War buffs should have their collections of guns, bayonets, uniforms, and badges confiscated in the name of the public?

Several years ago when I attempted to present my entire collection of thousands of recovered shipwreck artifacts to a maritime museum, I was met with a stern refusal. It was not a matter of capital expenditure or space allocation, but simple apathy. They had no interest whatever in preserving or displaying our underwater heritage.

The message is clear: museums are overstocked and public support is lacking. Museum basements are crammed with packaged items for which there is no display space. Consider the case of the New York museum which recently discovered in its vaults an Egyptian mummy still in the crate, waiting for over 50 years to be unpacked.

Public institutions have no need to collect more artifacts, and they have no place to keep them. Why not put them in private hands? They are just as valuable there, are more easily maintained, and they will have been returned to those people who, by their willingness to search for them, collect them, and buy them, demonstrate the most interest in their history.

To put things in their proper perspective, within the framework of the principles of this country, it is contrary to the public good to put any shipwreck or salvage operation under any form of government control, either Federal or state.

Hope for the Future

The sea is a sacrificial element: a bath of corrosive chemicals, an armory of hungry marine organisms, a morass of shifting sand, the site of toppling currents and destructive storms. Man’s carefully crafted structures and products soon fall prey to the whims of nature, which seek to reduce his handiwork to the substance from which it came.

The truth of this is obvious to anyone who dons a mask and views his first sunken wreck: he sees not a proud, shiny ship as it looked sliding down the ways, but a battered hulk vastly overgrown with coral and barnacles. From the day a ship is launched the deterioration begins, and it ends only when nothing is left. Every moment it remains in the water, man’s maritime heritage is being relinquished.

There is only one solution for ultimate conservation—removal to a controlled environment. To paraphrase a real estate admonition, the best time to remove an artifact was yesterday; the next best time is today. It might not be there tomorrow. How best to meet the alms of scientist and layman, adventurer and armchair follower, conservator and souvenir collector?

Emphasis must be made toward quick recovery in some cases, plodding archaeological methods in others. The most credible way to invoke civic responsibility is to settle on the standard that best represents the American way: money.

Archaeologists get paid for salvaging shipwrecks—why then should treasure hunters be treated any differently? Or sport divers? The fundamental law of salvage is to encourage it by offering rewards commensurate with the amount of time, effort, and money invested, and with the value of the property regained. And, as Judge King noted, “every day lost in the salving effort means fewer artifacts recovered for the benefit of society.”

While the issues are complicated, one thing is evident: individual property rights in a free, capitalist society must be maintained to uphold the integrity of that society. Legislative action should not take away those rights, and enacting laws that put one group at the disadvantage of another is not within the bounds of freedom for all.

Ultimately, what we need is less government intervention and more human involvement.