Zones of Shipwreck Law

There are six “zones” of shipwreck law:  (a) lands under non-navigable state waters; (b) state submerged lands; (c) national marine sanctuaries; (d) federal submerged lands; (e) outer continental shelf; and (f) deep seabed.  Each zone has its own way of resolving competing interests in shipwrecks located there.

A. Shipwrecks on Lands Under Non-Navigable State Waters.

Federal maritime law does not apply to shipwrecks in non-navigable waters, although its principles may be applied in the context of state common law where neither statutory nor regulatory law can answer a question raised.

All states have statutes or regulations governing the disposition of abandoned or unclaimed property which may apply to abandoned shipwrecks found in non-navigable state waters.  Many states have also enacted laws governing access to and use of cultural and archaeological resources, and many have extended these laws to cover historic, abandoned and/or embedded shipwrecks.  It is beyond the scope of this paper to address the specific statutory and regulatory law of each of the fifty states.

The common law principle of “finds” may also apply to shipwrecks on lands below non-navigable state waters.  Under this principle, the finder of lost property who reduces that property to possession generally acquires ownership thereto and the right of possession against all except the true owner, i.e., “finders, keepers.” 

There is an important exception to “finders, keepers” that applies to abandoned property that is “embedded” in the soil.  In the eyes of the law, embedded property is constructively in the possession of the owner of the underlying soil.  Having that possession, the landowner may assert ownership rights to the abandoned property by virtue of its possession to defeat the claim of any finder.  Potential owners of lands submerged under non-navigable state waters are the state, the local municipality or the private owner of adjacent uplands.

As is the case with all shipwrecks on submerged lands within a state’s jurisdiction, state, local and perhaps federal environmental protection laws may govern access to or recovery from a shipwreck in non-navigable state waters.  Disturbing or destroying natural resources will most certainly provoke involvement and oversight by at least one governmental agency.

B. Shipwrecks on State Submerged Lands.

As stated above, state submerged lands are those lands beneath navigable waters of a state.  Shipwrecks on these lands are subject to both federal maritime law and state law, regardless of their character.  The specifics of that law, however, do depend on the characteristics outlined above.  A shipwreck resting on state submerged lands may fall into three categories:  (1) not abandoned; (2) abandoned and either historical or embedded; or (3) abandoned and neither historical nor embedded.

1. Salvage Law Governs Non-Abandoned Shipwrecks.

Salvage law applies to long-lost shipwrecks that are not “abandoned.”  In summary, salvage law awards remuneration to a voluntary salvor who successfully rescues property from marine peril.  A salvor is eligible for an award upon the satisfaction of three elements:  (i) there is a marine peril placing the property at risk of loss or destruction; (ii) the rescue service is voluntarily rendered, that is, it is not required by some existing duty under law or contract; and (iii) the rescue efforts are successful.

In early shipwreck jurisprudence, some courts were unwilling to recognize that long-lost shipwrecks were in marine peril, instead believing that a wreck that has survived years on the seabed is not at risk of future loss or destruction.  These holdings were rare, however, and the modern view is that long-lost shipwrecks exposed to the forces of the sea remain in peril.

A salvor who satisfies the three elements of salvage is entitled to an “award” for its efforts.  An admiralty court will generally determine the amount of a salvage award based on six criteria:  (i) the degree of danger from which property was rescued; (ii) the value of the property saved; (iii) the risk incurred by the salvor in securing the property from the impending peril; (iv) the promptitude, skill and energy displayed by the salvors in rendering the service and saving property; (v) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed; and (vi) the time and labor expended by the salvors in rendering their service.

Admiralty courts factor in two additional criteria when determining the award of a salvor of a long-lost shipwreck.  First, they require that the salvor take all reasonable steps to protect and preserve the archaeological and historical value the wreck may offer.  To this end, when determining the amount of the award, the court will consider the degree to which the salvor worked to protect and preserve the historical and archaeological value of the shipwreck and items salvaged.

Second, the court may deviate from the traditional practice of awarding a sum of money as the salvor’s remuneration.  If the court recognizes that property rescued from a long-lost shipwreck is unique and intrinsically more valuable than its monetary value, the salvage award may be in the form of ownership of all or some of the property recovered.  For example, a teacup off a vessel that sank in the 1920s has far more intrinsic value than the cash that could be realized from its sale at a U.S. Marshal’s auction to convert the property to cash to pay a monetary salvage award.  Clearly, a salvor would prefer to have ownership of the teacup so it may use or dispose of it as it wishes and when it wishes.

2. The Abandoned Shipwreck Act Governs Abandoned Shipwrecks that are Either Historic or Embedded.

In 1988 Congress enacted the Abandoned Shipwreck Act (“ASA”) in an effort to resolve multi-use conflicts over certain shipwrecks resting on state submerged lands.  The ASA empowers states to manage abandoned shipwrecks that are either historic or embedded by granting ownership of such wrecks to the state on whose submerged lands they rest.  In turn, the ASA precludes application of salvage law and the law of finds to such shipwrecks.

Following enactment of the ASA, the National Park Service published “advisory” guidelines to assist states and federal agencies in developing legislation and regulations to implement the ASA.  These guidelines encourage states to enact legislation that protects natural resources, guarantees recreational access to shipwrecks, preserves the historical and archaeological significance of shipwrecks, and allows public-private partnering for recovery operations.

In response to the ASA, most coastal states have enacted laws governing shipwrecks on state submerged lands.  It is beyond the scope of this paper to address these laws in any detail, but a state’s law must be carefully reviewed when considering your rights to a wreck found on state submerged lands.  Interestingly, you may find that state law purports to assert jurisdiction and control over shipwrecks that are not included in the coverage of the ASA, in which case you will need to address the effect of such law and how federal maritime law applies in such situation.

3. The Law of Finds Governs Abandoned Shipwrecks that are Neither Historic nor Embedded.

Rights to an abandoned shipwreck that is neither historic nor embedded are governed by the law of finds, as incorporated from common law by federal maritime law.  The law of finds is generally outlined above in part III.A.  Admiralty courts prefer to apply salvage law over the law of finds, and, to achieve this result, they are reluctant to rule that a shipwreck is abandoned.

4. The Eleventh Amendment.

The Eleventh Amendment of the United States Constitution bars federal court lawsuits against a state without its consent.  After the finder of a long-lost shipwreck files a federal court action seeking adjudication of its rights by a federal admiralty court, it is not uncommon for a state to intervene in the action to assert rights it claims to have in the wreck.  Preferring to litigate in its own courts, the state will attempt to invoke the Eleventh Amendment in an effort to force dismissal of the finder’s federal court action at least as it pertains to the state.

Last fall, the U.S. Supreme Court in the Brother Jonathan case severely limited a state’s ability to invoke the Eleventh Amendment to dismiss federal court shipwreck litigation.  The Supreme Court ruled that a state cannot seek shelter in the Eleventh Amendment when it does not possess or control the wreck.  This ruling distinguishes an earlier decision by the Court in the Atocha case where it permitted a state to invoke the Eleventh Amendment when in possession of disputed items from a wreck.  Unfortunately, the Supreme Court declined to address other important issues presented in the Brother Jonathan case, one of which was a challenge to the constitutionality of the ASA.

5. Environmental Protection Laws.

State, local and perhaps federal environmental protection laws may govern access to or recovery from a shipwreck on state submerged lands.  Disturbing or destroying natural resources will most certainly provoke involvement and oversight by at least one governmental agency.

6. Navigation Laws.

An underwater survey, recovery and/or archaeological operation requiring extensive surface support may require compliance with federal and local navigation laws and rules.  For example, if vessel traffic requires routing around the operation, local vessel traffic control and the U.S. Coast Guard may require involvement to ensure safe passage of vessels and safe underwater operation.  If changes in seabed characteristics may affect navigability of the waters over that bed, the Army Corps of Engineers will desire review and involvement.

C. Shipwrecks in a National Marine Sanctuary.

In 1972 Congress enacted the Marine Protection, Research and Sanctuaries Act (“MPRSA”) in response to concern for protecting the environmental and cultural value of our coastal waters.  In addition to authorizing the National Oceanic and Atmospheric Administration (“NOAA”) to designate areas of the marine environment as national marine sanctuaries, Congress made unlawful certain conduct within the sanctuaries to be designated. 

Under the MPRSA it is unlawful to possess, destroy, cause the loss of, or injure any “sanctuary resources” managed under regulations promulgated by NOAA in designating a sanctuary.  A “sanctuary resource” is defined to mean any living or nonliving resource of a national marine sanctuary that contributes to the conservation, recreation, ecological, historical, research, educational or aesthetic value of the sanctuary.  Persons violating the MPRSA may be fined up to $100,000 for each violation, with each day unlawful conduct occurs constituting a separate violation, plus the cost of remedying the damage caused by the unlawful conduct.  Such penalty may attach as a maritime lien against a vessel on which violations occur, thereby exposing the vessel to Marshal’s arrest and sale to satisfy the penalty imposed.

The regulations promulgated by NOAA in designating most of the twelve national marine sanctuaries expressly prohibit removing or damaging “historical resources” or “cultural resources.”  The term “cultural resources” is defined to mean any historical or cultural feature, including archaeological sites, historic structures, shipwrecks and artifacts.

The MPRSA authorizes NOAA to issue “special use permits” which permit specific activities in a national marine sanctuary when such use is necessary to establish conditions of access to and use of any sanctuary resource, or to promote public use and understanding of a sanctuary resource.  The regulations for at least two of the national marine sanctuaries, Monterey Bay and Olympic Coast, expressly set forth procedures for obtaining permits for recovery of abandoned shipwrecks the title to which is held by the state adjacent to the sanctuary, namely California and Washington, respectively.

D. Shipwrecks on Federal Submerged Lands.

By executive proclamation dated 27 December 1988, nine months after Congress enacted the ASA, President Ronald Reagan extended the United States’ territorial sea from three to twelve miles.  By extending the United States’ sovereignty and jurisdiction, i.e., ownership, over the sea, seabed, subsoil and all resources therein seaward nine miles beyond state submerged lands and coastal waters, President Reagan created a new coastal territorial zone for the federal government to regulate.  This paper refers to the lands in this zone as “federal submerged lands.”

Since that proclamation, the federal government has not enacted legislation addressing shipwrecks on federal submerged lands, and none is currently proposed.  Shipwrecks in this zone are thus governed by salvage law and the law of finds.  Under the law of finds, the federal government may argue for ownership of any abandoned shipwreck that is “embedded” in federal submerged lands.

E. Shipwrecks on the Outer Continental Shelf.

By executive proclamation dated 28 September 1945, President Harry Truman extended the United States’ rights to submerged mineral resources to the continental shelf adjacent to its coasts.  However, neither the proclamation nor the subsequent Outer Continental Shelf Lands Act attempts to assert any rights in shipwrecks on the outer continental shelf.  This is confirmed by the 1958 Convention on the Continental Shelf which excluded shipwrecks from its coverage.  The Third United Nations Convention on the Law of the Sea, currently pending ratification by the U.S. Senate, also does nothing to decide rights to shipwrecks on continental shelves.

Although a number of countries have unilaterally enacted laws governing shipwrecks on their respective continental shelves, the United States has not.  Shipwrecks on the U.S. outer continental shelf are thus governed by salvage law and the law of finds.  Because the federal government does not assert ownership over the outer continental shelf, it may not argue that the law of finds gives it ownership of abandoned wrecks embedded in these lands.

F. Shipwrecks on the Deep Seabed.

The “deep seabed” refers to the ocean bed beyond the continental shelf of any country.  For example, the Titanic rests on the deep seabed some 500 miles southeast of Newfoundland in over 12,000 feet of seawater.

Salvage law and the law of finds currently govern shipwrecks on the deep seabed, at least when rights to such shipwrecks are adjudicated in the United States under U.S. law or current international law.

International efforts to preserve the historic and archaeological value of shipwrecks on the deep seabed are emerging.  Without the technical or financial means to find and recover shipwrecks on the deep seabed, many coastal nations are pushing hard for an international moratorium on the recovery of deep seabed shipwrecks in the name of preserving the cultural heritage of our global community. 

This international movement began with the drafting of the Third United Nations Convention on the Law of the Sea (“UNCLOS III”).  After consideration of a number of draft provisions addressing “objects of an archaeological and historical nature” found on the deep seabed, the result was a toothless, inadequate exercise of futility.  Article 149 of UNCLOS III requires that such objects be preserved or disposed of for the benefit of mankind as a whole with non-delineated “preferential rights” preserved for countries of origin.  However, article 303 contradicts article 149 by expressly preserving application of the law of salvage and “other rules of admiralty” to deep seabed shipwrecks.  UNCLOS III came into force in 1994 for the countries that have signed off on it, but the United States has still not formally entered it.  Although in 1998 President Bill Clinton signed UNCLOS III, it awaits ratification by the U.S. Senate, an act that many say is doubtful at least in the near future.

Recently, the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) has undertaken an attempt to draft a convention specifically addressing shipwrecks on the deep seabed.  Still in its early stages, an initial draft seeks to enact and enforce a regime that closely follows the intent of article 149 of UNCLOS III, that is place a moratorium on recovery of deep seabed shipwrecks to preserve their cultural value for all of mankind.  To further this purpose, delegates from certain participant countries are proposing to bar application of salvage law and the law of finds to these shipwrecks.  Whether UNESCO can finalize a convention for signature and what it would say are anyone’s guess at this point in time.  If UNCLOS III is any indication, the convention that UNESCO may eventually propose will do nothing more than pay lip service to preservation of deep seabed shipwrecks, leaving intact application of the laws of salvage and finds to recovery of such shipwrecks.