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.
For more than two centuries, Americans have defended the rights of sailors to move freely upon the open seas. But now, the international waters again are under attack. This time, however, we are fighting for freedom under the seas. And this time, the usurpers are minions within our own government.
At the center of the controversy lies the Monitor, one of the first ironclad warships, which was built for the Union navy by John Ericsson. Launched in January 1862, the Monitor was 179 feet long, weighed 1,200 tons, and featured a revolving turret containing two 11-inch guns. She was powered by steam, and had a screw propeller.
On March 8, 1862, the Monitor engaged the Confederate ironclad Virginia (formerly the Merrimack) near Hampton Roads, Virginia. In a historic struggle, the two ironclads fought a four-hour duel, which ended in a draw. In May 1862, when the Confederates abandoned Norfolk, the Virginia was run ashore by her crew and burned. In December 1862, the Monitor foundered and sank in heavy seas off Cape Hatteras, North Carolina. This, it would seem, was the end of the Monitor and Merrimack.
However, the U.S. Navy knew the approximate location of the Monitor. But without adequate financing for an in-depth survey, the Navy was unable to find the wreck.
The Navy’s primary concern was not who got credit for the find, but that the shipwreck be found. In 1953, to provide incentives for the private sector to conduct scanning operations, the Navy struck the vessel from the Naval Register and abandoned all salvage claims.
For two decades a veritable flotilla searched the shoals off Cape Hatteras, but it was not until 1973 that the Duke University research vessel Eastward located and tentatively identified the remains of the Monitor 16 miles offshore. The following year the site was revisited, and positive identification was obtained when the research vessel Alcoa Seaprobe took several thousand underwater pictures which were assembled into a photomosaic by Navy specialists.
Almost immediately, several government agencies began vying for control of the Monitor wreck. The winner was the National Oceanic and Atmospheric Administration (NOAA), under the auspices of the Department of Commerce. Although the ironclad did not fit the criteria of any Act of Congress, the Marine Protection, Research, and Sanctuaries Act was the shielding mechanism deemed most appropriate. The Monitor became a sanctuary in the middle of a one-mile diameter tract of sea bed and the accompanying column of water. It was designated the first marine sanctuary, and came to be known as the Monitor National Marine Sanctuary (MNMS). The Monitor had at last found a home—or was it a jail?
The Monitor as a marine sanctuary lies on shaky ground—and in legally turbulent water. By international agreement, territorial rights extend to 12 nautical miles from the mean high water mark. In this respect, the U.S. generously claims only three miles of territorial waters. In either case, the Monitor resides on land not owned by the U.S., and which is outside U.S. jurisdiction.
In addition, because the wreck was legally abandoned, its status falls under the common law principle of the maritime law of salvage, which, although expressed by various judges in different forms, generally provides that “the finder or salvor of abandoned property at sea who first reduces that property to his possession may keep that property.” (Treasure Salvors III case) in the 1981 Cobb Coin case, U.S. District Court Judge James Lawrence King further stipulated that “salvage law permits one whose salvage efforts are continuous and reasonably diligent to work a wreck site to the exclusion of others.” In other words, the backers of the Eastward expedition could have kept a substantial claim over the wreck had they continued to work it. Since they did not, the wreck is unclaimed property. Anyone may salvage it.
Anyone, that is, except U.S. citizens. They are not even allowed to look at the wreck, much less recover anything from it.
While the stipulated goals of the National Marine Sanctuary Program are, in part, to “enhance public awareness, understanding, and wise use of the marine environment,” and to “provide for maximum compatible public and private use,” the case of the lost shipwreck has been wrapped in rolls of extremely sticky red tape.
Frustration and Delay
Four years ago, when I first applied to the MNMS for a permit to dive the Monitor, it was with full confidence of receiving prompt and professional aid. My simple letter of intent stated my purpose and objectives—to dive the wreck of the Monitor in order to take pictures of the historic site. What I got was years of frustration and delay. At first, I received no response to my queries. Later, I obtained a grudging acknowledgment. Finally, intentionally rigid restrictions were imposed which would make compliance difficult and expensive. But, because I wanted to dive the wreck, I proceeded.
I wrote a six-page monograph, but MNMS found it inadequate. Eventually, this grew into a proposal of more than 100 pages in which I had to: itemize every piece of equipment I intended to take, and describe the function and use of each; submit a detailed cruise plan and time table of events; explain in intricate detail the techniques of scuba diving, even the most basic; furnish resumés and complete medical examinations for each participant; specify my goals, with no allowed deviation; and provide proof of funding. Doing this, I felt more like the board of directors of a university sponsoring an expedition than an individual desiring merely to see a sanctuary that supposedly had been put aside for my benefit.
During this time, not only did I receive no cooperation from MNMS, but the number of unanswered questions posed in my many letters was growing. And only one letter in four was answered. Worse, as I met the demands imposed upon me, the agency invoked discretionary procedures to conjure up more stumbling blocks.
In short, my permit application was denied. I was cited for safety violations due to depth (the Monitor lies in 220 feet of water) and for having photographic objectives which already had been met by previous NOAA expeditions. The Monitor National Marine Sanctuary took no cognizance of my experience and level of expertise: more than 700 open-ocean, decompression dives, of which nearly a hundred were made in depths equivalent to the Monitor.
In addition, MNMS officials assert that my photographic efforts on the Monitor must produce viable results which in some way benefit the Sanctuary. This obviates the ultimate aim of the sanctuary program: that sanctuaries, like parks, exist for the benefit of the people, not the reverse. Even if I chose not to make photo graphic documentation, this should not rule out my wanting to dive the Monitor because, like Mount Everest, “it is there.”
Following administrative procedure, I appealed the denial. But my involvement with MNMS did not end there. Because of my tenacity, I became the focus of an investigation. Upon learning that I intended to dive in North Carolina close to the Monitor site, a MNMS spokesman alerted the Coast Guard and threatened me with arrest and a $50,000 free should I be caught within Sanctuary boundaries. This brought up a curious situation: despite numerous requests for precise navigational coordinates, which I had needed for my proposal to calculate running times from shore to wreck, MNMS had steadfastly refused to give them to me. Now it en joined me to stay away from a spot whose location I did not know. Nevertheless, officers of the Marine Fisheries Department were waiting for my chartered boat every day when it docked. They inspected our gear for artifacts which might have been old enough to have come from the Civil War ironclad. The surveillance continues.
I once cajoled an MNMS spokesman into admitting that Sanctuary regulations had been made purposely stringent so as to deny public access. The MNMS desires sole proprietorship over the site; it wants to have the only photographs of the wreck; and it wants complete control over publicity. It does not want to share the Monitor experience. Not is it committed to having the wreck fully documented—it wants only that such documentation be generated within its own bureaucracy, free from outside competition.
The condition of the Monitor today is not the same as it was yesterday, last year, or at any other time in its history. The sea is ever changing, ever destroying. As a shipwreck disintegrates, it passes before our eyes like a movie in extreme slow motion. Each frame is ephemeral, existing only for a brief instant in time, and must be studied before it dissolves.
Even the most naive must admit that the Monitor does not display the same graceful curves as when it slid down the ways in 1862. Its turret and Dahlgren guns are no longer thrust out defiantly against foes such as the Virginia. Its destruction is a continuous and ongoing process that is not stopped by the passing of laws, or governmental intervention.
My case seemed totally lost until I met Peter Hess through the Atlantic Alliance for Maritime Heritage Conservation. This body of volunteers has lobbied for years against the many bills which seek to take, not just the Monitor, but all shipwrecks out of the public domain, and place them under government control. Although the prime goal of the Alliance is to teach underwater archaeology to interested divers around the nation, it has taken a staunch position in protecting people’s rights to dive shipwrecks.
Peter Hess is a diver, shipwreck historian, amateur archaeologist, and an attorney with a background in maritime law. He has been intimately involved with diving legislation, has frequently advised on Alliance policy, and has testified in Senate heatings against the Abandoned Shipwreck Acts, which aim to place all shipwrecks under government control. He followed my Monitor pursuits with fervent concern. When my bid for justice died, he put life back into my sagging spirit.
After listening to my story and reading my correspondence, Peter was keen enough to note many improprieties in NOAA’s handling of my permit application: improper delegation of authority, bias among MNMS staff members who had personal ambitions concerning the disposition of the Monitor, disinclination to consider proven scuba diving methods, and lack of impartial review. The denial of my permit was arbitrary and capricious.
Working together, we filed a complaint for declaratory judgment and injunctive relief in the United States District Court for the Eastern District of Pennsylvania. NOAA and MNMS were forced to commit to the administrative record such evidence as existed in their files. However, so vehemently did they resist inter rogation that they filed a motion to have any further discoveries kept out of the Court’s eyes.
Even so, several things became immediately clear: that, although mandated by Federal regulation, my permit application had not been circulated among members of either the Scientific Review Board or the Advisory Council on Historic Preservation—those very two committees for whom I had written my proposal in such painstaking detail; that, after stipulating that my photographic objectives already had been met by previous (government-sponsored) expeditions, NOAA spent $1.8 million of taxpayers’ money on another photographic expedition; that, while not allowing my support vessel to place a 30-pound anchor near the wreck, in order to facilitate diver access and afford increased safety, NOAA permitted its own expedition to drop four six-ton anchors on the site, even though it used no divers and required no safety measures; that, after all the rhetoric aimed at protecting a valuable marine resource, NOAA let its own members fish the wreck.
MNMS had pigeonholed my entire project right from the start, and never had any intention of letting it get a proper review.
I realized the full absurdity of this situation during a recent visit to Halifax. My Nova Scotian friends were dumbfounded to learn that they could take their boat down the coast and dive the Monitor at any time. And no one, Coast Guard included, could stop them. Canadians, or the citizens of any other nation, are not bound by U.S. mandates when they are in international waters. The only people prevented from visiting the Monitor are U.S. citizens.
There is not much left of the Monitor. Its once sleek hull is pockmarked by the ravages of the sea: it is a mere skeleton of itself, unrecognizable to all but experts. The minimum estimate for raising the hulk is upwards of $40 million, not counting the cost of preservation, housing, and eternal maintenance—an unwarranted expense for archaeological provenience considering that, with all the photographs, plans, and written records of the Monitor, there is probably nothing further to be learned.
The only thing ironclad about the Monitor today is MNMS’s stand on no access. Instead of bouncing off cannon bails and solid shot, present arrangements deny access to the very people who are most willing to spend their own money and expend their own efforts to bring to the public the images of their adventures.
The time is long overdue to re-evaluate the entire status of the Monitor. Why should Americans be forbidden to dive the wreck? Are there other ways to manage the Monitor which would involve less red tape? Why, in fact, should the Federal government maintain ownership and control? Wouldn’t a private owner or salvager have strong incentives to put the remains of the Monitor to the best possible use?
In a free society, the purpose of the State is not to own or to rule, but to protect the rights and property of its citizens. Abandoned shipwrecks, by the very nature of abandonment, are not the possessions of the government merely by the fact of their existence. If shipwrecks belong to anyone, it is to those individuals with the will and the incentive to dive on them at their own cost and expenditure of time. The confiscation of this property under the guise of “the public good,” coupled with the subsequent denial of public access, violates the most basic moral principles.