UASI

Technology gives us access to virtually the entire seabed. As technology advances, the cost of that access will dramatically decrease and more people will visit the seabed in places where access was once only imaginable. We have already seen this in inland and coastal waters where SCUBA and manned and unmanned submersibles are routinely used for commercial and recreational purposes.

Affordable access to submerged lands will further fuel the lure and race of competing interests seeking to stake a claim in long-lost shipwrecks and their “treasure.”[1] Salvors were once the only interest group with real ability to access these wrecks, but times have changed. Today, numerous groups compete for access to, use of and/or recovery from shipwrecks. For example, various government agencies attempt to guard access to long-lost shipwrecks to protect their claim to revenue from sale of salvaged items, tourism, and natural resources they fear will be damaged from salvage operations. Marine historians seek to preserve shipwrecks for archaeological study into past societies and technologies. Recreational users, including scuba divers and sport fishers, seek unfettered access to these artificial reefs abounding with marine life. Insurance companies seek to protect their subrogated interests in valuable cargo on which they paid claims long ago. Woven through this multi-use conflict are of course conflicts within a group with the same interest, such as salvors competing for exclusive salvage rights.

With so many interest groups competing over long-lost shipwrecks, their access is not as simple as it used to be when a salvor could follow the basic rule of “finders-keepers.” The law today does its best to resolve the various conflicts that arise over long-lost shipwrecks, but it is not keeping up with technology and the law is so complex that legal battles are becoming as expensive as the archival and underwater work required just to locate the wreck. This is amply shown by the protracted litigation over such wrecks as the Nuestra Sénora de la Atocha, Titanic, Central America, Lady Elgin, and more recently Brother Jonathan, which made it all the way to the United States Supreme Court.

This paper provides a basic overview of the various legal regimes that govern access and rights to long-lost shipwrecks. How the law treats you depends on the characteristics and location of the shipwreck and what you want to do with it. Before embarking on a long and expensive search for a wreck, you need to evaluate the legal rights you will have upon finding the wreck and to have the necessary procedures in place to immediately secure your rights against competing interests. This evaluation calls for a detailed, case-by-case analysis that turns on factors too numerous and fact-specific to cover completely in this paper.

This paper uses the term “shipwrecks” generally to cover all long-lost, submerged, man-made resources that await discovery. Obviously the term includes sunken vessels, their cargoes and other objects and artifacts that went down with them. As used in this paper, the term “shipwrecks” also covers non-vessel, submerged sites that can include jettisoned cargo, Native American artifacts, aircraft and, as recently in the news, space reentry craft.

[1] I use the term “treasure” generically, recognizing that its meaning may depend on one’s point of view. Although “treasure” has been traditionally viewed as booty, gold, jewels and other artifacts that would bring a high price in the market place, today it could be viewed differently among the various groups with interest in long-lost shipwrecks. To a marine historian, the “treasure” of a shipwreck is the historical and archaeological value that can be derived from a “time capsule” providing unique insight to a time long ago. To a tourism bureau, that same shipwreck may bear “treasure” in the form of dollars brought into the local economy by recreational divers and other tourists.