The Law & Wrecks

PART I
Canada
 Federal
Canada Shipping Act (2001)

Parks Canada
“Standards for the Conservation
of Archaeological Sites”
Canada Shipping Act (2001)
Definition of a “shipwreck”
“Jetsam, flotsam, lagan and derelict and any
other thing that was part of, or was on a
vessel wrecked, stranded or in distress;
and Aircraft wrecked in waters and
anything that was part of or was on aircraft
wrecked, stranded or in distress in waters.”
• Under the new Act any geographical area within
Canada can be exempt.
• Recognizes areas within Canada’s national parks
as being under the jurisdiction of Parks Canada.
• Still allows for the possible designation of a
“Receiver of Wreck.”
• Anyone who commits an offence under Part 7 of
the Act is liable to be fined up to $100,000, can
receive a jail term of up to one year or both.
 Parks Canada
The new standards for the conservation of
historic places in Canada applies to sites on both
land & underwater. It replaces the former
“Archaeological Legislation on Lands in Canada.”
There are 15 general standards for all
projects within national parks. Most apply to
the restoration of historic buildings and places.
The two general standards which have direct
implications for underwater sites (found within
National Parks or on Crown land) are;
 General Standard 3
Conserve “heritage value” by adopting an
approach calling for “minimal intervention.”

General Standard 6
Protect and, if necessary, stabilize a “historic
place” until any subsequent “intervention”
is undertaken. Protect and preserve
archaeological resources in place. Where
there is potential for disturbance of archaeological
resources, take mitigation measures to limit
damage and loss of information.
Lake Minnewanka, Banff National Park
The new standards were introduced in 2003 along
with financial incentives for the private sector to
preserve historic properties.
In addition, Canada’s new “Historic Places
Initiative” includes the Canadian Register of
Historic Places, which lists formally recognized
historic places across the country.
The new standards and guidelines is
described as “Canada’s first comprehensive,
nation-wide benchmark of
conservative principles and practices.”
 PART II (a)
The Provinces
All provinces and territories within Canada have
legislation pertaining to the management of archaeological
resources on lands found within their borders. However,
legislation aimed at protecting underwater sites is not
uniform across the country and some jurisdictions, such as
the Province of Saskatchewan and the Yukon Territory,
have none at all. Most jurisdictions are facing serious
challenges in trying to identify and manage their marine
heritage resources.
Lets look at those provinces which do have legislation
pertaining to shipwrecks:
 British Columbia
Heritage Conservation Act
Amended several times since it was introduced in 1977.

Administered by
the Department of Small Business, Tourism and Culture:
Archaeology Branch

All shipwrecks over two years old are the property of the Province.

The Archaeology Branch has a unique relationship with the

Underwater Archaeology Society of B.C. The UASBC
reviews all foreshore applications for the potential impact
on submerged cultural resources within the province.

Permits are required for archaeological research involving direct

contact with sites. Applicants need not have a degree, but must have
demonstrated ability in underwater archaeology.
The Bonnington, Kootenay Lake, B.C.
 Newfoundland & Labrador
Historic Resources Act
Introduced in 1985.
Administered by the Department of Tourism, Culture and
Recreation: Cultural Affairs Branch: Historic Resources Division

All shipwrecks and associated artifacts are owned by the Province.

A permit is required to “conduct archaeological investigations for

the purposes of discovering archaeological objects.”
No qualifications are specified as to who can apply,
and be approved, for a permit.
Wrecks of Bell Island, Nfld.
 Prince Edward Island
Archaeological Sites Protection Act
First introduced in 1987, but has been amended several times.

Administered by the PEI Museum & Heritage Foundation.

PEI’s Dept. of Education designates an archaeological site.

All shipwrecks and associated artifacts are the property of the

Province.

A permit is required to conduct archaeological research. Permits

are reviewed by a volunteer board, which makes recommendations
to the Minister of Education. No qualifications are specified as to
who can apply, and be approved, for a permit.
 New Brunswick
Historic Sites Protection Act
First introduced in 1954, but has been amended several times.

Administered by the Department of Economic Development,

Tourism and Culture: Heritage Branch

All shipwrecks and associated artifacts are the property of the

Province.

A field license is required per separate marine archaeological

project. A license holder must hold an advanced degree in
Archaeology (or equivalent) as well as have four months of field
experience – of which at least two months must have been in a
supervisory position.
 Quebec
Cultural Property Act
First introduced in 1973, but has been amended several times.

Administered by the Minister of Culture and Communications

No specific protection is afforded explicitly to shipwrecks, but the

Minister may recognize any cultural property whose conservation is
in the public interest. Only one shipwreck, the Empress of Ireland,
has so far been recognized.

An archaeological research permit is required per project. The

permit holder must have a Master’s degree in Archaeology and a
minimum of 20 weeks of field experience.
The Empress of Ireland
 Ontario
Ontario Heritage Act
Revised in 1990.

Administered by the Ministry of Citizenship, Culture, &

Recreation: Archaeology & Heritage Planning

The Act doesn’t specifically identify shipwrecks as being

protected, but three have been directly by the Minister,
the Hamilton and the Scourge in Lake Ontario
and the Edmund Fitzgerald in Lake Superior.

Despite having no explicit shipwreck law, an archaeological

underwater license is required by the Province to conduct even a
general survey of a site. Applicants must be deemed competent to
conduct research.
The Hamilton
 Nova Scotia
Special Places Protection Act
Introduced in 1980, replacing the Historical Objects Protection Act.

Administered by the Dept. of Tourism, Culture and Heritage:

Special Places Program, Heritage Division

Potential conflicts exist with Nova Scotia’s Treasure Trove Act,

which was introduced in 1954 in relation to Oak Island. Treasure
Trove License holders are allowed to keep 90% of any “treasure”
they find. Any “non-financially significant” artifacts remains the
property of the Province.

A heritage research permit is required for exploration (Category A)

and excavation (Category B). The later can only be applied for by an
applicant who has at least a B.A. in Archaeology, and experience,
and is deemed competent to conduct the proposed research.
Auguste wreck site
 PART II (b)
State of Florida
The Historical Resources Act
The Bureau of Archaeological Research manages
Florida’s historical shipwreck sites. It contracts exploration
and excavations to private companies or individuals.
But, unlike the Province of Nova Scotia,
the State of Florida is much more involved
in supervising contractors and their work.
Funding is also available to contractors for projects
through Florida’s Historic Preservation Trust Fund.
 In 1985 Key West salvor Mel Fisher found the “mother lode” of financially significant
artifacts, treasure from the 1622 wreck of the Nuestra Senora de Atocha. Forty-seven tons of
gold and silver bars and coins, jewelry, emeralds and other artifacts were recovered –
estimated between $200 and $400 million. Fisher had to fight to keep the majority of his
haul though, fighting the State of Florida for ownership all the way to the US Supreme
In 1992 the National Oceanographic &
Atmospheric Administration (NOAA)
declared the Florida Keys a protected
sanctuary. This froze almost all
salvaging efforts in the area.
However, Fisher’s Supreme Court
victory grandfathered his right to
recover from the Atocha site.
Today, MEL FISHER’S TREASURES
is a private company made up of
investors who each pay $10,000
per year to spend a week working
the wreck site. Each investor gets
to keep the first piece of silver
or gold they find (within limits)
and shares in the division
of all the treasure found that year.
The State of Florida receives
20% of everything that is recovered.
The Mel Fisher Treasure Museum
is, today, a not-for-profit
organization.
 The Gulf of Mexico
Oil exploration and development
& marine archaeology
The U.S. Department of the Interior,
Minerals Management Service
(MMS), is responsible for ensuring
that all activities it permits takes into
consideration the potential effects
these may have on archaeological
resources.

MMS manages natural resources,

such as oil and gas, through a
combination of efforts that includes;
requiring oil companies to conduct
remote sensing surveys and
archaeological assessments in lease
blocks.

MMS also funds surveys to identify known and expected locations

of marine archaeological sites.
 To date, 35 historic shipwrecks have been identified in the Gulf - in
water depths greater than 1,000 feet. Of these, 18 were located mostly
through the results of Right-of-Way hazards pipeline surveys.
The German u-boat U-166 was first detected in 1986, and subsequently
identified in 2003, by a survey company working for British Petroleum
(BP) and Shell International to map the Mississippi Canyon Area.
A grant provided by the U.S. Government allowed for the systematic
exploration of the wreck using advanced undersea technology. The
project was coordinated by the National Oceanic and Atmospheric
Association’s Office of Ocean Exploration.
 PART III
Current International Law
There are several international
regulatory bodies which govern
shipwrecks. These include;
the Committee Maritime
International, the United
Nations Division of Ocean
Affairs & the International
Maritime Organization.

The United Nations

“Law of the Sea Convention”
applies to areas beyond the
territorial waters or legal
jurisdiction of any country.
 The
“Convention on the Protection of the Underwater Heritage,”
was put
forward in 2001 by the United Nations’s Education,
Scientific and Cultural Organization (UNESCO).

But, it only applies to the 20 countries which have ratified it.

Canada is not one of these!
Nor is the United States, The United Kingdom,
France, Germany, Japan, China, Russia and most
countries in the developed world.
 Malaysia
Malaysia decided not to sign the UNESCO 2001 Convention,
stating that its National Heritage Act (2005) was introduced
specifically to safeguard that country’s underwater cultural heritage.

Malaysia recognizes that marine archaeology is expensive,

especially pertaining to deepwater projects. And, that a
country with a developing economy, like Malaysia, cannot
afford the expense. As a result, it contracts out excavations
to private companies. However, the country does have its
own small team of marine archaeologists who oversee
contractors and conduct some projects on their own.

Malaysia says it has a good handle on treasure hunters and has

taken steps to curb looting using its marine and naval authorities.
The Strait of Malacca remains one of the most important sea routes in the world.
It gained prominence in the 15th Century when the Melaka Sultanate became the
center of a thriving international spice trade that extended from Europe to China.

Portugal was the first European nation to take control of Melaka in 1511 AD.
The Dutch attacked and defeated the Portuguese in 1641. They ruled for 154 years.
The last colonial power to rule Malaysia was Great Britain,
which had already established colonies in Penang and Singapore.
 Dominican Republic
The island of Hispaniola (today’s Haiti and the Dominican Republic)
is one of the most important sites for Colonial archaeology.
It’s where the Spanish first established themselves in the New
World. In fact, Columbus lost his flagship, the Santa Maria,
on his first voyage of discovery in 1492.

A year later he returned to Hispaniola and established

the colony of La Isabela. Between 1494 and 1496 at
least three of Columbus’s ships were lost in a hurricane.

In 1496 the Spanish colonial seat was established

in Santo Domingo, today’s capital. They would
rule the eastern side of Hispaniola until 1697.
Some of the oldest buildings in the Americas are at
Santo Domingo; including the oldest cathedral,
Catedral Santa Maria la Menor (left) and the
oldest hospital, Hospital de San Nicola de Bari.
 The Dominican Republic has not ratified the UNESCO 2001
Convention. Like Malaysia, it works with private
contractors to manage its underwater cultural heritage.
The Dominican Republic was the first country in the
world to establish an underwater shipwreck museum,
the 1724 Guadalupe Underwater Archaeological Preserve.
 India
India has many submerged cultural resources including several, now underwater, “lost
cities.” It has not ratified the UNESCO 2001 Convention. But, unlike the Dominican
Republic and Malaysia it does not contract out its archaeology to private companies.
Instead, it works with a number of foreign academic institutions; such as the Western
Australia Maritime Museum at Fremantle, & the University of Southampton in England.

To date, only a limited amount of field work has been done and few sites have
been studied thoroughly. As a result, many argue that marine archaeology in
India is largely under-developed and under-appreciated both at home and abroad.
 Sovereign Immunity
Military shipwrecks less than 100
years old remain the property of their
mother country under the terms of
“Sovereign Immunity”
(Law of the Sea Convention).

In Canada this applies to the

shipwrecks of foreign warships, such
as several German u-boats off this
country’s east coast.

However, some nations, such as the

United States, Spain and Great
Britain, argue that Sovereign
Immunity applies to warship wrecks
older than 100 years.
 Black Swan Big Trouble!
Tampa-based ODYSSEY MARINE EXPLORATION is in legal
hotwater with the governments of Spain & Peru over a shipwreck,
code named “Black Swan” it recovered in 2007.

The company alleged that the shipwreck was in international waters

and was beyond the legal jurisdiction of any country. Initially,
it refused to divulge the location of the find and any details about the
shipwreck it came from.
Odyssey Marine Exploration first
made news when it recovered a
large cache of gold coins from the
SS Republic off the US east coast
in 2003.
However, the publicly-traded
company has never made a profit
and allegations of stock fraud from
its pre-Republic days still dog the
company’s founders & directors.
During the summer of 2007
Odyssey Marine’s search
vessel, Ocean Alert, was
seized by Spanish authorities
off Gibraltar – who searched it
for clues as to the origin of the
estimated $500 million in
silver coins. Spain then filed a
claim against the company in
US Federal Court.

Even though the wreck was found beyond the country’s 200-mile
Exclusive Economic Zone, Spain said that it had a claim to the
wreck under the terms of both Sovereign Immunity (UNCLOS)
and the UNESCO 2001 Convention – which it ratified in 2005.
In May, 2008, the company finally acknowledged that the
wreck was probably that of the Nuestra Senora de las Mercedes,
a Spanish warship sunk by the British navy, southwest of
Portugal in 1804, while returning from South America.

Because most of the 17 tons of silver came from Peru, that

country also filed claim against the company in August, 2008.

In June, 2009, a US Federal Court judge ruled that Odyssey

must return every coin in its possession to Spain. The company
has said it will appeal the judge’s ruling.

Some archaeologists estimate that as many as 8,000 Spanish

Colonial shipwrecks worldwide are waiting to be discovered.
 PART IV
The Titanic
The United States leads when it comes to protecting the
world’s most famous shipwreck, the ocean liner, Titanic.
After it was discovered in 1985, Congress approved
“the RMS Titanic Maritime Memorial Act of 1986.”

The Act made it unlawful for anyone in the US to trade

in artifacts from the wreck. Further to the Act, only one
American company, RMS Titanic Inc., was granted,
permission to remove artifacts from the shipwreck,
but only for the purposes of public exhibition.

In 2007, the US implemented further legislation to protect the wreck, as

part of an international agreement with the United Kingdom and Canada.
The National Oceanic and Atmospheric Association (NOAA) will
represent the US, regulating dives to Titanic from the United States.
 The United Kingdom
was the first country to
sign the international
agreement in 2003.
And, while
acknowledging that
Titanic is, “a historical
wreck of exceptional
international
importance,” that
country has not stated
how it plans to protect
the wreck.

Canada has not yet

signed the international
agreement.
 In March, RMS Titanic Inc.
applied for a salvage award in
US Federal Court. Despite the
fact that an estimated 33
million people worldwide have
seen its Titanic exhibit, the
company says it’s lost money.

RMST asserts that the costs

associated with the recovery
and conservation of the
artifacts have exceeded
revenues from their display. It
values the collection at $110
million US.

It’s now up to US District

Judge Rebecca Smith to decide
if RMST can sell the collection.
 Where do we go from here?
Government legislation provides everyone
with the “rules of the road.” If there aren’t
any, Government is powerless to act.
This includes protecting marine archaeological sites,
deciding what’s to be done with them
and who makes such decisions.
You can help by asking your politicians to support new
federal legislation aimed at protecting & better managing
this country’s unique underwater cultural resources.
Here’s a few ideas as to how we can improve things:
• Shipwreck management legislation in Canada needs to be
uniform nation-wide. But, each province can maintain its own
authority - just as they do now when it comes to governing other
areas like natural resources, transportation and health care.
• Canada needs to develop marine archaeology standards and
procedures for companies involved in undersea oil and gas
exploration. And, it needs to administer these in the same way
that the United States does.
• Both Ottawa and the Provinces needs to better manage all
shipwrecks – not just protect them by restricting access. And, it
needs to allocate more resources in doing so. Right now it’s
largely a case of “out of sight, out of mind!”
As we journey under the sea we will, undoubtedly, come in contact
with more shipwrecks. The exploration, and exploitation, of natural
resources in the world’s oceans is increasing rapidly, thanks largely
to advancements in technology.

If we don’t take steps now to better protect and manage shipwrecks

they will, most certainly, be destroyed or lost to the public for good.

Shipwrecks don’t belong to

only a few! They belong to
everyone – divers and
non-divers alike. It’s only
by working together that we
can better protect and
manage our shipwrecks.
“History is the social memory
of the human experience.”
Northrope Fry
Professor
University of Toronto
 Shipwrecks give us the
opportunity to dive into history!
Photo Sources
Province of BC
NOAA
Other
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