Finders of long-lost shipwrecks can follow two paths to
securing rights to a wreck: one that leads
to a state agency, and another that leads to the federal courthouse.
A. State Agency.
The path that leads to the state agency with
authority over shipwrecks should be followed when the shipwreck found
is clearly on state submerged lands, abandoned, and either historic or embedded. Such
a wreck is governed by the ASA, under which the state owns the wreck
and has the exclusive power to determine the rights, if any, it will
extend to the finder and others. A federal
admiralty court can offer no help because the ASA divests it of
authority.
Going directly to the state agency, a finder
may negotiate and contract its rights to the wreck, subject to the
agency’s authority. Such a contract may
enable a public-private partnership for the use sought by the finder. The contract may additionally provide the
finder rights to the wreck that are exclusive of other potential users,
at least during a critical time; delineate the finder’s responsibility
for protecting and preserving the wreck’s historic value; delineate how
property recovered from the wreck is to be disposed; and resolve any
other anticipated issues that may be unique to the wreck or the
finder’s proposed use.
There are advantages and disadvantages to
recognizing a state’s ownership and management authority over a wreck. One advantage is that it fosters a cooperative
relationship between the state and finder, and agreement between them
may avoid protracted, expensive litigation that otherwise may occur. Another advantage is that under the ASA the
state should already have in place a program and staff that may assist
the finder in preserving the historic value of a wreck from which the
finder may benefit. Another advantage is
that the contract between the finder and agency can address issues
unique to the wreck or the finder’s proposed use, unresolved by federal
maritime law, or otherwise requiring creativity and flexibility not
available from a federal admiralty court.
An obvious disadvantage of recognizing a
state’s authority over a wreck is that the finder loses certain freedom
it has under federal maritime law, subjects itself to regulatory
procedures that can be quite burdensome, and otherwise subjects itself
to the scrutiny of a government official. Another
disadvantage is that by disclosing a find to the state agency, a finder
loses confidentiality that may be critical to the early stages of a
survey, archaeological study or recovery operation.
Another disadvantage is that a state may not be
required to give rights to the finder, instead extending the rights the
finder expects to a more-favored third party. Another
disadvantage is that dealing with the state agency exposes the finder
to collateral challenge by a competitor seeking rights in federal
admiralty court. A subsequent ruling by a
federal court that the wreck fails to meet the eligibility requirements
of the ASA or that the ASA is unconstitutional would evaporate the
state’s authority over the wreck and place the finder back at square
one again, but this time with a competitor to deal with.
A. Federal Admiralty Court.
The path that leads to the federal courthouse
should be followed for every shipwreck to which the ASA does not clearly apply. Because time
is of the essence for the finder to secure rights to the shipwreck,
precious time and confidentiality will be lost by erroneously taking
the path to the state agency. If in doubt,
go to federal admiralty court for application of salvage law or the law
of finds. A choice to take the path to the
federal courthouse can later be reevaluated once the federal court is
involved and at least interim rights to the shipwreck are secured.
A federal admiralty court will assert
jurisdiction over a shipwreck only upon the finder’s demonstration that
it has found the wreck, gained “possession” of it, and is able and
ready to maintain that possession. The
finder must be immediately prepared to present the court with
videotape, several objects recovered from the wreck, and an affidavit
attesting to the find and the finder’s intent and ability to reduce the
wreck to possession. Upon such showing,
the court will recognize jurisdiction over the wreck, direct the U.S.
Marshal to take custody of the objects recovered, and issue an interim
order providing the finder with exclusive rights to the wreck and
barring entry into the site by others. You
can imagine the great lengths finders go to in racing to the courthouse
to be the first to invoke the court’s jurisdiction and to receive
exclusive, albeit interim, rights.
The federal admiralty court will not rule
beyond its interim order unless and until the finder provides adequate
notice of the action and its claim to all parties with potential claims
to the wreck or some part of it. Actual
notice is required for parties known to have such a claim, such as the
owners of the vessel and cargo when they sank, insurance companies that
paid claims of loss on the vessel and cargo, the state, and others who
may have a colorable claim. Notice by
publication in a local newspaper is further required to supplement
actual notice. Notified parties are then
given a limited time to come forward, intervene in the action, and
assert their claims. It is during this
time that the finder holds its breath; for if no claimant comes
forward, the finder may be granted a default judgment awarding it the
permanent rights it seeks with little or no further litigation.
However, if a claimant does come forward to
claim an interest adverse to that sought by the finder, a lawsuit
begins and the parties litigate their dispute much like parties to
other lawsuits do. If a state happens to
make an adverse claim, Eleventh Amendment issues discussed above are
raised. A state successfully invoking the
Eleventh Amendment will derail the finder’s federal admiralty case and
cause the finder to litigate against the state, and perhaps all other
claimants, in state court, which is without the special admiralty
powers that federal courts have.
The finder seeking ownership over a long-lost
shipwreck through application of salvage law or the law of finds should
go to great lengths to preserve and protect the historical and
archaeological value of the wreck. Federal
admiralty courts have specially created this criterion under salvage
law, and they seem to be placing more and more importance on it as the
law develops. A salvor would be wise to
bring a marine historian and archaeologist to its team to conduct an
archaeological survey of the wreck, to train other team members on
proper archaeological techniques, and to oversee and verify
preservation and protection of the wreck’s historic values. This team member may be an important witness
to testify before the court, so make sure he or she is qualified and
competent and give him or her the respect and authority needed to
maintain confidence in the importance the salvor places on these
non-financial values.
