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ADRIFT ON THE HIGH SEAS: THE

APPLICATION OF MARITIME SALVAGE
LAW TO HISTORIC SHIPWRECKS IN
INTERNATIONAL WATERS

By Kevin Doran

I. INTRODUCTION
The ocean has always been perilous. Great monsters capable of
wrecking ships fill the pages of ancient epics and the uncharted corners of
antique maps. Even today, massive rogue waves are thought to be
responsible for the loss of dozens of ships each year. A staggering number
of proud vessels have never returned to port, taking their sailors and their
cargoes to the bottom of the sea. Littering the world’s oceans are old
wrecks which possess substantial historic and archaeological value, in
addition to the commercial value of their cargo. In the territorial waters of
the United States alone there are between 2,500 and 5,000 shipwrecks of
historical significance.1 In the past, the exploration of these shipwrecks was
foreclosed by the difficulty of locating them in the vastness of the ocean
bed and accessing them in the depth of the water in which they were found.
Technological advances such as SCUBA, sonar and remotely operated
submersibles have allowed salvage operators, or salvors, to locate and
access sites that have heretofore been unreachable.2
The special concerns of archaeological preservation presents a
challenge to the traditional laws of maritime salvage when applied to
historic shipwrecks. The United States has domestic protections for historic
shipwrecks within its territorial waters, other countries have passed similar
measures, and the United Nations Convention on the Law of the Sea

1. Craig Forrest, Historic Wreck Salvage: An International Perspective, 33 TUL. MAR. L.J.
347, 349 (2009) [hereinafter Forrest]. Russell G. Murphy, The Abandoned Shipwreck Act of 1987
in the New Millenium:Incentives to High Tech Piracy?, 8 OCEAN & COASTAL L.J. 167, 180
(2003) [hereinafter Murphy].
2. Murphy, supra note 1, at 174.

101
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(UNCLOS or LOSC) recognizes both the right and the responsibility of

coastal nations to take steps to protect the historical value of shipwrecks in
their territorial waters. The problem, however, is that a great many
shipwrecks lie outside of the territorial waters of any nation. These
international historic shipwrecks also lie outside the protection of any
statute or treaty and there is no coherent legal regime for the adjudication of
disputes over their ownership. Into this void, the federal courts in the
United States have asserted a partial jurisdictional authority. 3 However, the
federal courts’ application of U.S. maritime law has been criticized as
favoring private salvage companies,4 which are predominantly located in
the United States.5 The U.S. courts claim to apply traditional maritime
salvage law known as a ius gentium, or law of nations with regard to
salvage.6 This law of nations is, despite reference to ancient historical
precedent, in conflict with the concerns of many coastal states. Other
countries and international bodies have taken different approaches to
dealing with historic shipwrecks, but at present, U.S. courts sitting in
admiralty actively adjudicate disputes over historic shipwrecks in
international waters.7 The application of U.S. maritime law to historic
shipwrecks is insufficient to protect the historical and archaeological value
of these vessels and their cargo. American courts should look not to
traditional maritime salvage law, but rather to the growing consensus, both
in international law, and in our own domestic law to balance the salvor’s
pecuniary interest with the interests of the world community at large in the
preservation of the historical and cultural value of these shipwrecks.

II. STATUS QUO

A. Traditional Maritime Law of Salvage and Finds

Saving a distressed vessel at sea is a very risky endeavor, which
requires technical skill, bravery, and often puts the salvor and his vessel in
considerable danger.8 To encourage people to assume the risk of saving
other people and property from loss at sea, compensation is often allowed to
the salvor, which could be a percentage of the value of the property

3. Forrest, supra note 1, at 351.

4. Id. at 353.
5. Id. at 349-50.
6. Paul V. Niemeyer, Applying Jus Gentium to the Salvage of the RMS Titanic in
International Waters, 36 J. MAR. L. & COM. 431, 442 (2005).
7. Forrest, supra note 1, at 350.
8. Murphy, supra note 1, at 175.
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recovered.9 The purpose of recovering vessels or cargo at peril or lost at

sea is to bring valuable property back into the stream of commerce.10 The
laws of salvage are generally designed to encourage individuals to take
risks in order to achieve this goal.11
There is no equivalent to the law of salvage for property on land
because most on land disasters are either safely salvaged after the disaster
or are lost forever.12 If a train runs off the rails, a truck crashes, or an ox
cart breaks an axle, the owner will most likely be able to recover the goods.
Also, except in extreme cases such as fire, the property may be damaged
but will likely not be entirely lost. However, ships at sea are often within a
hair’s breadth of complete destruction. Until very recently, once below the
surface of the waves, the ship, along with its cargo, was unrecoverable. As
a result, the theoretical framework underpinning salvage law presumes
imminent peril, but this is not an ideal way of handling historic wrecks
whose economic value must be balanced against their scientific and cultural
value.
Salvage law can apply to ships that have been abandoned, are derelict,
or are shipwrecked.13 In order for a salvor’s efforts to qualify as a salvage
mission, four conditions must be met: the property must be in marine peril;
the salvor must attempt the rescue voluntarily; the rescue must be in the
bona fide interest of the owner; and the salvor must be at least partially
successful in recovering the property.14 The term ‘marine peril’ is
ordinarily understood to mean that a vessel is at risk of sinking, losing its
cargo, or otherwise in danger from rough seas or other forces which might
compromise its seaworthiness.15 The requirement that the salvor be
successful increases the risk to the salvor, as he could undertake a costly
and dangerous salvage attempt and, if the ship and cargo are still lost, be
left with no reward.16 The salvor must also not be under a prior duty to
rescue a distressed ship and while the salvor may be motivated by the
prospect of a salvage award, he must still work for the benefit of the owner
of the vessel.

9. Craig Forrest, INTERNATIONAL LAW AND THE PROTECTION OF CULTURAL HERITAGE

307-08 (2010) [hereinafter Heritage].
10. Id. at 288.
11. Id.
12. Id. at 300.
13. Id.
14. Id.
15. Heritage, supra note 9, at 300.
16. Id. at 304.
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Additionally, it is presumed that the owner has not abandoned his

interest in the vessel and its cargo. Thus, the salvor does not gain title to
the property recovered.17 In a successful salvage operation, the salvor will
go to court to seek a salvage award, which is most often a percentage of the
value of the property recovered. In the United Kingdom and the United
States, this percentage is very high, and can be up to 100 percent of the net
proceeds of the sale of the property.18 The percentage of the award depends
upon the level of risk, cost, and skill of the salvor. However, there are
instances when the salvor may gain ownership of the recovered property if
the owner is unwilling to pay, through a maritime lien or through the law of
finds.19
The law of finds presumes that the owner has abandoned his or her
property and recognizes title to the property in the finder.20 In cases of
historic shipwrecks, the owners are generally presumed to have abandoned
the property.21 Certain categories of vessels, such as sovereign vessels like
warships are presumed not to be abandoned in the absence of an affirmative
declaration by the sovereign. Salvors have a major incentive to persuade
the court to apply the law of finds to the wreck, or at least to the recovered
cargo, as this means they then can recover the full value of the find and
have claim to the goods against the world. The problem with the
application of these legal frameworks to historic shipwrecks is that they
both encourage the salvor to quickly extract the most valuable pieces of
cargo from the site, potentially destroying a large amount of archaeological
information in the process.22 These shipwrecks have a greater value than
merely the sum of the coins and cannons in their shattered hulls, however,
the traditional laws of salvage and finds do nothing to protect their historic,
scientific and cultural importance.

B. American Cases Dealing with Historic Shipwrecks

American federal courts have had many occasions to visit the problem
of historic shipwrecks in international waters and in some ways their
decisions have shaped the current legal environment of salvage operations

17. Id. at 309; see also Murphy, supra note 1, at 176, 179.
18. Heritage, supra note 9, at 307.
19. Id. at 309, 311-12.
20. Jeffrey T. Scrimo, Raising the Dead: Improving the Recovery and Management of
Historic Shipwrecks, 5 OCEAN & COASTAL L.J. 271, 292 (2000).
21. Heritage, supra note 9, at 310.
22. See Terence P. McQuown, An Archaeological Argument for the Inapplicability of
Admiralty Law in the Disposition of Historic Shipwrecks, 26 WM. MITCHELL L.J. 289, 313 (2000).
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more powerfully than international agreements. This is mainly because,

until recently, international treaties have expressly not dealt with the
problem of regulating historic wreck salvage outside the limits defined in
the UNCLOS.23 The American courts have filled a void left by the
international community. Three cases in particular illustrate both the
development of the American approach to historic wreck salvage and the
problems associated with allowing the courts of one nation, particularly one
with substantial commercial interests at stake,24 to control the adjudication
of this truly international issue.

1. Treasure Salvors
The case involving Treasure Salvors, Inc. was decided in 1978, almost
a decade before the passage of the ASA, and provides a good example of
the reasoning employed by American courts in their application of the law
of finds and constructive in rem jurisdiction to historic wrecks in
international waters.25 Treasure Salvors, Inc. was a professional salvage
operation that discovered a Spanish ship off the coast of the Florida Keys in
international waters.26 The vessel was determined to be the Nuestra Senora
de Atocha, which sunk in 1622 en route to Spain.27 Desiring to recover the
cargo of the vessel, an estimated $250 million in gold bullion, Treasure
Salvors filed an action in U.S. district court to claim title to the Atocha as
an abandoned wreck under the law of finds.28 The salvors had entered into
a contract with the state of Florida whereby the state would get twenty-five
percent of the value of the recovered items.29 At the time the case was
decided, Treasure Salvors had spent over $2 million in the recovery and had
brought up $6 million in cargo and other artifacts, although at the additional
cost of four divers’ lives.30 The United States intervened in the action,
attempting to assert a sovereign prerogative, similar to that claimed by the
Crown under English law.31 The 5th Circuit, however, denied the federal

23. See generally International Convention on Salvage, Apr. 28, 1989, S. TREATY DOC.
NO. 102-12 [hereinafter Salvage Convention 1989]; Convention on the Protection of the
Underwater Cultural Heritage, Nov. 6, 2001, 41 I.L.M. 40 [hereinafter UNESCO UCH].
24. Forrest, supra note 1, at 350.
25. Treasure Salvors, Inc. v Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d
330, 333-35 (5th Cir. 1978).
26. Id. at 333.
27. Id.
28. Id.
29. Treasure Salvors, Inc., 569 F.2d 330 at 333.
30. Id.
31. Id. at 340.
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government’s assertion and recognized the right of Treasure Salvors to

claim title to the wreck.32
In deciding that the district court had properly exercised its jurisdiction
over a vessel that lay outside of U.S. territorial waters, the 5th Circuit relied
on precedent that cited convenience and efficiency as the rationale for
allowing courts to enter judgments against res outside its jurisdiction.33 The
court held that it had the power to determine the rights to the vessel as
certain artifacts were brought to the court and that possession of the part
was possession of the whole.34 The fiction that the ship and its cargo are an
undivided res serves as the basis for the extension of American courts’
jurisdiction in in rem actions into international waters. Some
commentators, as well as the 4th Circuit (discussed below), have suggested
that the term “constructive” as applied in certain cases refers to a kind of
“inchoate” or “imperfect” jurisdiction, and not in the general sense used in
every other area of Anglo-American law.35 This “inchoate” jurisdiction
means that the court has something less than full sovereignty and can
merely make a declaration, but cannot enforce its decree without the
consent of other nations. The court in this case was able to avoid this issue
because the dispute was between an American company and the United
States government. The court reasoned that it could resolve the dispute as
between these parties without having to determine the rights of the salvor as
against the rest of the world.36
The 5th Circuit, having disposed of its jurisdictional issues, then
proceeded to dismiss the federal government’s attempt to intervene and
assert an English style sovereign prerogative. The court then confirmed
Treasure Salvors, Inc.’s title to the vessel by applying the law of finds.37 It
accomplished this task through a very liberal interpretation of the term
“marine peril” as used in salvage and finds law.38 The restriction of salvage
rights to the salvors of vessels in “marine peril” is intended to encourage
salvors to rescue struggling vessels, giving them an economic incentive to
prevent these ships from being lost.39 In this case, the vessel had been at the

32. Id. at 343.

33. Id. at 334.
34. Id. at 335-36.
35. BLACK’S LAW DICTIONARY 138 (3rd Pocket Ed. 2006) (defining “constructive” as
“legally imputed, having an effect in law though not necessarily in fact.”).
36. Treasure Salvors, Inc., 569 F.2d 330, 343.
37. Heritage, supra note 9, at 295.
38. Id. at 301.
39. Id.
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bottom of the sea since 1622.40 One would think its peril has long since
passed. Yet, the 5th Circuit reasoned that because the ship was still in
existence, though sunken and partially buried, it was still in peril from the
elements.41 This logic represents a tortured attempt to extend a laudable
policy to justify the exploitation of archaeological sites for private gain.
The Atocha was exposed to greater, not lesser peril by allowing the private
salvage company an unfettered right to the vessel.

2. R.M.S Titanic
The wreck of the R.M.S. Titanic, the ill-fated luxury liner lost after a
collision with an iceberg in the Atlantic Ocean in 1912, became a subject of
considerable controversy in the late 1990’s when the salvage company that
had located and begun preliminary exploration of the site sought to enjoin
another company from bringing tourists in submersibles to view and
photograph the wreck site.42 The wreck, at rest more than two and a half
miles under the ocean, was far beyond the reach of salvage operators until
the mid 1980’s, when sonar and submersible technology allowed access to
the site.43 After the initial discovery of the site, a series of expeditions were
undertaken to photograph, take samples, and collect artifacts.44 The first
salvor to begin extracting artifacts was an American company, Titanic
Ventures, Ltd. (which later transferred their interests to R.M.S. Titanic,
Inc.).45 In 1992, a competing company, Marex Titanic, Ltd., filed a claim in
the Eastern District of Virginia to be named the sole and exclusive salvor of
the Titanic.46 Titanic Ventures, Ltd. intervened and, in part because of
misrepresentations to the court on the part of Marex, was granted exclusive
salvage rights for the Titanic.47 From 1987, the year Titanic Ventures, Ltd.
began recovery, until 1998, Titanic Ventures and RMST brought
approximately 5,000 artifacts to the surface.48

40. Treasure Salvors, Inc., 569 F.2d 330 at 333.

41. Id. at 337.
42. Robert D. Peltz, The Titanic’s Legacy: The History and Legal Developments Following
the World’s Most Famous Maritime Disaster, 12 U.S.F. MAR. L.J. 45, 76-77 (2000) [hereinafter
Peltz]; Brooke Wright, Keepers, Weepers, or No Finders at All: The Effect of International Trends
on the U.S. Exercise of Jurisdiction and Substantive Law in the Salvage of Historic Wrecks, 33
TUL. MAR. L.J. 285, 292 (2008) [hereinafter Wright].
43. Peltz, supra note 42, at 68; Wright, supra note 37, at 291.
44. R.M.S. Titanic Incorporated v Haver, 171 F.3rd 943, 952 (4th Cir. 1999); Peltz, supra
note 42, at 68-70; Wright, supra note 42, at 291.
45. Peltz, supra note 42, at 71.
46. Id. at 70.
47. Id. at 71.
48. Id. at 73.
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The 5th Circuit’s rationale in granting exclusive salvage rights to

RMST deserves special consideration because it is a well-cited example of
the concept of constructive in rem jurisdiction and clearly illustrates the
problems with such an approach. The court acknowledged that its
jurisdiction with regard to the totality of the wreck was incomplete and that
it could not claim jurisdiction against the whole world. The use of
“constructive” to describe an incomplete jurisdiction is a departure from the
traditional legal definition. Why then did the court decide to apply this
rather odd reading of the term to its jurisdiction over the Titanic shipwreck?
As the court noted, American courts lack exclusive jurisdiction over
international waters, so its order would have the same effect as that of
another nation’s courts sitting in admiralty.49 No other courts have
exclusive jurisdiction.
The court in Titanic asserted its rights to adjudicate according the ius
gentium of the law of the sea.50 Assuming the law of salvage was a part of
this law of nations, the court wrote that “we are satisfied that it will do no
violence to the relationship among nations to enforce these rights to the
extent generally recognized on a non-exclusive basis.”51 The court also
asserted that it did have jurisdiction over the items recovered from the
wreck and brought within its jurisdiction. 52 Taking these two propositions
together, it appears that in a case where one party sought a declaration of
exclusive salvage rights from one jurisdiction and another party from
another nation’s jurisdiction, there would be no method, other than the
mutual respect for the ‘shared sovereignty’ of the high seas, for resolving
the dispute. The salvors would have to race to recover the goods from the
vessel and bring them within the jurisdiction of the court of their choosing,
so that a court, properly exercising its powers in rem against the items
within its jurisdiction, could issue an enforceable order. The potential
damage to the integrity of sensitive wreck sites from such a competition
clearly illustrates how the application of traditional maritime salvage law
does little to encourage the responsible exploration and preservation of
historic shipwrecks.

3. Odyssey Marine Exploration, Inc.

Three recent cases involving Odyssey Marine Exploration, Inc., an
American salvage company, illustrate the responses of other nations to the

49. R.M.S. Titanic, 171 F.3d 943 at 967.

50. Id. at 966-67.
51. Id. at 968.
52. Id. at 967-68.
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largely preferential treatment given to American salvage companies in U.S.

courts. The HMS Sussex, a gun-ship carrying a large cargo of money, sank
in international waters off the coast of Gibraltar in 1694.53 In 2001,
Odyssey located the wreck and began salvage operations.54 Once the
British government learned of the find, and of Odyssey’s salvage efforts, it
entered into a contract with Odyssey to acquire a portion of the proceeds
from the sale of the artifacts.55 Archaeologists in Britain were incensed, but
the government reasoned that the contract produced a better result than they
would get in an American admiralty court.56 Once Odyssey raised the cargo
and brought it into U.S. jurisdiction, even if Britain’s claim to the wreck
were recognized, the court would apply traditional maritime salvage law,
characterized by the court as a ius gentium, and grant a large salvage award
to Odyssey.57 The award would probably have been close to 100% based
on the skill and cost involved in the recovery. It was the threat of this near
total loss that drove Britain to enter into a contract with the company
salvaging its warship.58
The more recent, and as yet not fully resolved case of the Black Swan
not only illustrates the current American approach to historic wreck salvage
in international waters, but serves as a potent example of the problems that
can arise where American courts step into the jurisdictional void. While the
case of the Titanic involved competing interests from private salvage
operators, the private salvors in the case of the Black Swan faced off with a
sovereign nation. Further litigation has been prevented only through the
good fortune of a bi-lateral treaty between Spain and the United States.59 Commented [H1]: The citation for this sentence seems to be off
However, it is easily foreseeable that a similar conflict might arise between
less friendly countries. Such a conflict may have no easy resolution and
could lead to long lasting resentment. Bi-lateral treaties are not reliable
arbiters of disputes over international shipwrecks.
Black Swan is a code word used by Odyssey Marine Exploration, Inc.,
an American salvage company, to describe a colonial period site in
international waters off the coast of Spain.60 Odyssey has been largely
successful in its attempt to keep detailed information about the site hidden,

53. Forrest, supra note 1, at 351.

54. Id.
55. Id. at 351-52.
56. Id.
57. Id.
58. See id.
59. See also Wright, supra note 42, at 289-90.
60. Forrest, supra note 1, at 352.
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including its exact location and the items recovered.61However, it is known

that Odyssey has recovered over 500,000 silver coins as well as gold coins,
worked gold and other artifacts.62 Spain, having some indication that the
find was a Spanish vessel, filed a claim asserting that it did not intend to
give up its property rights to any Spanish vessels or cargo. 63 Spain’s
possible claim was dismissed when it was discovered that the wreck at issue
was a 20th century passenger liner, but potential stumbling blocks remain as
Odyssey continues to explore several other sites in the area, which some
evidence suggests may be the locations of sunken Spanish ships.64
A third case, decided in the summer of 2010, illustrates clearly how
American courts continue to invoke the ius gentium of the law of salvage
and finds in adjudicating claims to historic shipwrecks. This case involved a
French vessel, Le Marquis Tourney, which sank in the English Channel in
the late 18th century.65 American courts have agreed that sovereign vessels
are not abandoned unless expressly abandoned by the sovereign.66 The
plaintiffs claimed English privateers had taken control of the vessel before
it sank, thereby sidestepping the French claim. The district court in the
Middle District of Florida reaffirms the application of constructive in rem
jurisdiction to shipwrecks in international waters. The court noted that it
did not extend to the parts of the vessel still below the English Channel, but
rather only to those parts which had been brought within the jurisdiction. 67
However, the court also specifically found that the law of finds applies to
historic shipwrecks.68 The court refers to it as “traceable to antiquity,”
following earlier courts’ invocation of ancient law codes to justify the
application of the laws of salvage and finds as part of an ius gentium.69
Not only does this finding encourage the rapid plunder of historic
wrecks in order to ensure the recovery of a salvage award, but the court
expressly gave this admonition. The court stated, “[a] would-be finder
should be expected to act acquisitively, to express a will to own by acts
designed to establish the high degree of control required for a finding of

61. Wright, supra note 42, at 295.

62. Forrest, supra note 1, at 352.
63. Id.
64. Wright, supra note 42, at 295-96.
65. See Odyssey Marine Explorations, Inc. v Unidentified, Wrecked, and Abandoned Sailing
Vessel, 727 F. Supp. 2d. 1341 (M.D. Fla. 2010).
66. See id.; Heritage, supra note 9, at 309-12.
67. Odyssey Marine Explorations, Inc., 727 F. Supp. 2d at 1345.
68. Id. at 1343.
69. Id. at 1344, 1348.
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possession.”70 Such a direction to salvors severely endangers the

preservation of the archaeological integrity of these historic shipwrecks.
But most importantly, this case shows directly how out of sync the courts in
the United States are with the rest of the world, and indeed with its own
domestic legislation, when dealing with historic shipwrecks in international
waters.

III. OTHER APPROACHES

A. International Agreements Dealing with Historic Shipwrecks

1. UNCLOS
The United Nations Convention on the Law of the Sea (UNCLOS) is a
comprehensive treaty dealing with many issues of interest to coastal
nations, including the regulation of historic shipwrecks.71 When the treaty
was negotiated in 1982, the right of coastal nations to regulate shipwrecks
was limited to a twenty-four nautical mile boundary extending from their
shorelines. Mediterranean nations pushed for a much larger boundary, but
the United States and others prevailed in establishing the twenty-four mile
limit.72 Resources such as minerals, oil, and gas may be regulated by
coastal nations as far as the edge of their continental shelf, but historic
shipwrecks are specifically excluded.73 Article 303, the provision which
deals with historic shipwrecks, expressly limits coastal states’ ability to
control historic shipwrecks within their territorial sea, which is defined in
Article 33 as twenty-four nautical miles.74 Even though the same treaty
allows for coastal states to regulate other resources located on or below the
seabed out to the edge of their continental shelf, historic shipwrecks, which
lie outside this twenty-four mile boundary, are beyond this treaty’s
protection.

70. Id. at 1350 (quoting Hener v. U.S., 525 F. Supp. 350, 356 (S.D.N.Y. 1981)).
71. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982,
1833 U.N.T.S. 397, available at http:treaties.un.org/doc/Publication/UNTS/Volume%201833/
v1833.pdf [hereinafter UNCLOS].
72. See Forrest, supra note 1, at 370 n.151; Anne M. Cottrell, The Law of the Sea and
International Marine Archaeology: Abandoning Admiralty Law to Protect Historic Shipwrecks,
17 FORDHAM INT’L L.J. 667, 677 (1994) [hereinafter Cottrell].
73. UNCLOS, supra note 71; see Forrest, supra note 1, at 348 n. 1.
74. See UNCLOS, supra note 71, at 1276, 1326; David J. Bederman, Historic Salvage and
the Law of the Sea, 30 U. MIAMI INTER-AM. L. REV. 99, 107 (1998). Cottrell, supra note 72, at
677 & n.58.
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2. Salvage Convention of 1989

The Salvage Convention of 1989 was adopted to update a 1910
convention which had attempted to bring a degree of uniformity to maritime
law.75 The Convention primarily focuses on traditional maritime salvage,
the rescue or recovery of seagoing vessels, and provides regulations and
guidelines for these operations.76 Neither the 1910 nor the 1989
Convention has dealt directly with historic shipwreck salvage.77 The 1989
version contains an interesting provision that allows a nation to reserve the
right not to apply the Convention when dealing with historic shipwrecks. 78
Article 30(1)(d) states, “[a]ny State may, at the time of signature,
ratification, acceptance, approval or accession, reserve the right not to apply
the provisions of this Convention: . . . (d) when the property involved is
maritime cultural property of prehistoric, archaeological or historic interest
and is situated on the sea-bed.”79 This provision, while not itself providing
any kind of framework for dealing with historic salvage, recognizes that
many nations take a different approach to historic shipwrecks than the
traditional law of salvage.
Although the 1989 Convention sets out rights and responsibilities of
salvors, it does not exclude the application of the common law of salvage.80
A country could be a signatory to the convention, make a reservation under
article 30(1)(d), and continue to apply their courts’ law to historic wreck
salvage.81 This is essentially the approach taken by the United Kingdom,
which continues to apply its common law and national statutory law of
salvage to these wrecks.82 The United States has not made such a
reservation.83 Therefore, the 1989 Convention should apply in American
courts in those cases in which the Abandoned Shipwreck Act (“ASA”-
discussed below) does not.84 However, the 1989 Convention is rarely, if
ever, applied in American courts.85 For example, one reported case
regarding traditional salvage that was decided after 1989 relied on the 1910

75. Heritage, supra note 9, at 330.

76. Martin Davies, What Ever Happened to the Salvage Convention 1989?, 39 J. MAR. L. &
COM. 463, 482 (2008) [hereinafter Davies]
77. Heritage, supra note 9, at 330.
78. Id. at 330-31.
79. Salvage Convention 1989, supra note 23, at 9.
80. Heritage, supra note 9, at 331.
81. See id.
82. Id.
83. Davies, supra note 76, at 501.
84. See id. at 485.
85. See id. at 463-64.
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Convention.86 In dealing with historic wreck salvage outside the areas

covered by the ASA, American courts have primarily relied upon American
common law, supported by the concept of the ius gentium of maritime
salvage.87

3. UNESCO Underwater Cultural Heritage

Concern over the legal framework for dealing with cultural heritage
prompted the International Law Association (ILA) in 1988 to begin
developing a new approach for protecting Underwater Cultural Heritage
(UCH).88 The ILA took issue with the twenty-four nautical miles limitation
in the UNCLOS and suggested extending coastal state jurisdiction over
historic wrecks to 200 nautical miles.89 The ILA also suggested specifically
excluding historic shipwrecks from the application of traditional maritime
salvage law, as some nations have done with their domestic law.90 The
ILA, being a non-governmental organization, could only make
recommendations and so it forwarded its proposal to the United Nations
Educational, Scientific and Cultural Organization (UNESCO) to be
considered.91 In 2001, the convention was finally adopted after substantial
revision and amendment.92
The adopted UCH Convention takes a substantially more protective
approach for historic shipwrecks than any prior international agreement, but
it is not contradictory to the domestic protections offered by many coastal
states. One of its two most important provisions concerns the scope and
jurisdiction of the convention. First, the definition of underwater cultural
heritage was expanded to include “all traces of human existence having a
cultural, historical or archaeological character which have been partially or
totally underwater, periodically or continuously, for at least 100 years.”93
This definition would certainly include all shipwrecks over 100 years old.
Second, the geographic scope was intended to include all international
waters, outside the boundaries set by the UNCLOS, as the UCH Convention

86. Id. at 464.

87. See Wright, supra note 42, at 308-10.
88. Heritage, supra note 9, at 331; David J. Bederman, The UNESCO Draft Convention on
Underwater Cultural Heritage: A Critique and Counter-Proposal, 30 J. MAR. L. & COM. 331, 332
(1999) [hereinafter Bederman].
89. Heritage, supra note 9, at 332.
90. Id.
91. Id.
92. Id. at 333.
93. UNESCO UCH, supra note 23, art. 1 para. 1(a).
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recognized coastal states to be absolutely sovereign within those areas.94

The proposed extension of coastal state jurisdiction over cultural heritage
was met with strong criticism from maritime powers, especially the United
States, who favored a greater degree of freedom on the high seas and feared
a creeping jurisdictional expansion by smaller coastal states which could
harm its interests in international trade.95
The other important provision of the UCH Convention relates to the
rejection of traditional maritime salvage law and the law of finds to historic
wrecks or to underwater cultural heritage in general. Commentary to the
ILA draft illustrated why traditional salvage is inappropriate for historic
wrecks: “the major problem is that salvage is motivated by economic
consideration; the salvor is often seeking items of value as fast as possible
rather than undertaking the painstaking excavation and treatment of all
aspects of the site that is necessary to preserve its historic value.”96 This
tension between the economically motivated law of salvage and the need to
protect the historic integrity of historic wrecks underlies the whole of the
UCH Convention. One of the principles of the convention is that in situ
preservation should be the first option when a wreck is found to ensure, so
that a proper archaeological investigation can be conducted before the site
is disturbed.97 This principle is in direct contrast to the motivations in
traditional maritime salvage law, which encourages the salvor to take items
from the site as soon as possible, so that he can gain title or the right to a
salvage award. The UCH Convention explicitly states that “the commercial
exploitation of underwater cultural heritage for trade or speculation or its
irretrievable dispersal is fundamentally incompatible with the protection
and proper management of underwater cultural heritage.” Underwater Commented [H2]: I think this sentence needs a citation
cultural heritage shall not be “traded, sold, bought or bartered as
commercial goods.”98 Distinguishing items of cultural heritage from the
kind of commercial goods which are the subject of salvage reflects the
culmination of a strong trend in the international community to provide
special protection for historic shipwrecks.

94. Id. art. 7, para. 1.

95. Bedermen, supra note 88, at 339; Heritage, supra note 9, at 347.
96. Heritage, supra note 9, at 342.
97. Id. at 335.
98. UNESCO UCH, supra note 23, Annex r. 2.
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IV. DOMESTIC LAWS OF COASTAL NATIONS

A. Ireland
In 1588, King Philip of Spain sent over 100 warships to attempt a
conquest of England. More than half of these ships never returned to their
homeports, two dozen or so lost in bad weather off the coast of Ireland. 99
These wrecks of the famed Spanish Armada form some of the best known
of the perhaps 10,000 wrecks from different periods in Irish waters.100 The
forbidding depth, temperature, and lack of water clarity have kept most of
these wrecks unexplored. Beginning in the 1970’s, recreational divers
began exploring and exploiting some of these wrecks, leading in some cases
to the recovery of centuries old artifacts.101 Some of the artifacts included
an 8th or 9th century cross and hoards of Viking Era silver.102 These
recovery efforts were conducted almost entirely by private parties and many
of the artifacts recovered ended up on the black market.103
Even though some of these pieces were making their way to museums,
the Irish government recognized that the degree of exploitation required
specific legislation to protect UCH.104 In 1987, Ireland passed an
amendment to their National Monuments (Amendment) Act, part of which
dealt directly with the preservation of historic shipwrecks.105 These
protections are strict, providing for Underwater Heritage Orders which
could designate areas on, in or under the seabed as restricted based on the
existence or potential existence of objects of historic or archaeological
value.106 The Act prohibits any tampering with or removal of
archaeological objects in these restricted areas, as well as a blanket
restriction on diving, survey and salvage operations.107 In order to simply
dive near these wrecks it is necessary to get a license from the Minister for
the Environment, Heritage and Local Government and an additional license
is required to raise any material from the site. 108 A separate act, the
Merchant Shipping (Salvage and Wreck) Act of 1993 extends similar

99. Nessa O’Connor, Ireland, in THE PROTECTION OF UNDERWATER CULTURAL HERITAGE,

(Sarah Dromgoole ed., 2d ed. 2006).
100. Id.
101. Id.
102. Id.
103. Id. at 129.
104. Id. at 127.
105. O’Connor, supra note 99 at 130.
106. Id.
107. Id.
108. Id.
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protection to wrecks less than 100 years old.109 In practice, however, the
office of the Receivers of Wreck has authority over historical or
archaeological items from any shipwreck in Irish waters.110 The Irish
government has clearly recognized a difference between ordinary salvage
operations and the special circumstances of historic shipwrecks, extending
substantial protections and setting up a scheme for their management.

B. Australia
Large-scale European exploration and trading has been going on in
Australian waters since the 17th Century, and the waters off the enormous
coastline of the continent hold numerous wrecks of historic significance.111
There are also indigenous sites, which date back thousands of years.112 A
series of looting incidents in the 1970’s led the Australian government to
pass the Historic Shipwrecks Act 1976, one of the earliest such legislative
enactments among coastal states.113 The Act, which has not been
extensively modified in the intervening years, is accompanied by a strong
administrative enforcement mechanism, which has made the Act very
effective at protecting historic wrecks.114 The Act protects the remains of
ships as well as the relics associated with those shipwrecks.115 In its
application, the relics, which have been removed from the ships and are
currently on land, would still fall under the Act’s protection. 116
The major provisions of the Act include: a blanket protection of all
shipwrecks more than seventy-five years old; an affirmative obligation on
divers to report a discovered shipwreck; protection of wrecks significant to
Papua New Guinea; the power to declare a 200 hectare zone around a
historic shipwreck; a power to grant licenses to individuals or companies to
access the shipwrecks; a reward system for reporting shipwrecks; and a
penalty of up to $50,000 for interfering with a historic shipwreck.117 There
is also an established register to keep track of historic wrecks and of relics
in individual possession.118 In addition, the government has also compiled

109. Id. at 131.

110. Id.
111. Bill Jefferey, Australia, in THE PROTECTION OF UNDERWATER CULTURAL HERITAGE, 2.
(Sarah Dromgoole ed., 2006).
112. Id.
113. Id. at 1-3, 5.
114. Id. at 1.
115. Id. at 3.
116. Id.
117. Jeffery, supra note 111, at 4.
118. Id.
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guidelines, which set out criteria for identifying historic wrecks and
evaluating their cultural significance.119 Similar to the legislation in place
in the United States, (discussed below) the Australian Act delegates a
substantial amount of the monitoring responsibility from the federal to the
state governments.120 The Federal Department for Environment and
Heritage provides guidelines and strategies to the state agencies to more
effectively monitor and protect historic shipwrecks.121 The Australian
government at both the federal and state levels has taken aggressive and
substantial steps to distinguish and identify historic shipwrecks and to
protect them from unregulated salvage.

C. United States—Abandoned Shipwreck Act of 1987

The experience of the destructive effects of unregulated treasure
hunters on historic shipwrecks in the 1960’s led the United States to pass
the Abandoned Shipwreck Act (ASA) in 1987.122 Congress intended the
ASA to prevent the looting and destruction of these sites and to provide a
framework for handling the responsible exploitation of the vessel.123
Congress intended to ensure the protection of the shipwrecks by taking the
ship and its cargo out of the federal court’s admiralty jurisdiction and
expressly forbidding the application of the laws of salvage and finds.124
The federal government automatically takes ownership of a historic
shipwreck and then transfers title to the state in whose waters the wreck was
found. Following non-binding recommendations from the Department of
the Interior, the regulation and administration of shipwrecks under the ASA
are left to the states.125 Congress decided to have states administer historic
shipwrecks in their waters because state governments are closest to the
sites, have a greater interest in the regulation of their local waters, and are
better equipped to handle the litigation than the federal courts.126
Recognizing the distinction between ships in distress or recently wrecked
vessels and shipwrecks of such historic value as to require special

119. Id.
120. Id. at 6.
121. Id.
122. Abandoned Shipwreck Act §§ 2-7, 43 U.S.C. §§ 2101-2106 (2006); Murphy, supra note
1, at 167.
123. 43 U.S.C. §§ 2101-2106; Murphy, supra note 1, at 169-70.
124. See 43 U.S.C. §§ 2101-2106.
125. See Abandoned Shipwreck Act Guidelines, 54 Fed.Reg. 13642-13658 (Apr. 4 1989)
[hereinafter Guidelines].
126. Scrimo, supra note 20, at 284.
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protections, Congress passed the ASA to prevent irresponsible salvers from

destroying these wrecks.
The United States asserts title to a shipwreck under the ASA if the
vessel is “(1) embedded in submerged lands of a state; (2) embedded in
coralline formations protected by a state on submerged lands of a state; (3)
on submerged lands of a state and is included in or determined eligible for
inclusion in the National Register.”127 Specifically excluded are sovereign
vessels of a foreign state and vessels found on federal land or Indian land.128
Once the Secretary of Interior determines a shipwreck is historic, the ASA
immediately vests title of the shipwreck with the state in whose waters the
wreck was found.129 Theoretically, this allows each state to exercise a more
precise level of control and management of its own resources, as historic
shipwrecks are deemed to be part of the “broad range of living and non-
living resources in State waters and submerged lands.”130 Each coastal state
(including Great Lakes states) must develop its own regulatory scheme,
licensing and enforcement mechanism, and jurisprudence interpreting the
ASA and the Department of Interior guidelines.131 This multiplicity of
approaches has led to some of the ASA’s most potent criticisms.132
The ASA’s complexity and multiplicity means that even a salvor
seeking compliance may be forced to engage in costly litigation, which
discourages private salvors from following the rules. When a wreck is
found, the potential salvor must try to determine whether the wreck will fall
under ASA jurisdiction or under traditional federal maritime law.133 This
distinction is important, but is not easily ascertained, as the language of the
ASA is vague at best.134 The ASA talks about “abandoned” wrecks which
are “embedded” in the submerged lands or coralline formations, but leaves
the actual application of these terms to the state legislatures and courts. 135
If the wreck falls under ASA protections, the salvor would then have to
determine in which state’s waters the vessel was lying and then follow that
state’s guidelines.136 However, given the irregular shape of our coastlines,

127. 43 U.S.C. § 2105(a).

128. Id. § 2105(d).
129. Id. § 2105(c).
130. 43 U.S.C. § 2101(a).
131. Murphy, supra note 1, at 170-73; see also Guidelines, supra note 125.
132. See Murphy, supra note 1, at 169-73.
133. Id. at 178-79.
134. See id; see also Scrimo, supra note 20, at 300 (explaining that the interpretation of a
colorable claim under the ASA lead to inconsistencies between circuit courts).
135. Murphy, supra note 1, at 169-70; see also 43 U.S.C. §§ 2101-2106.
136. Murphy, supra note 1, at 178.
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2012] SALVAGE LAW 119

it is very possible that a potential salvor could file an action in the court of
State A only to have the agency of State B intervene claiming the wreck is
in their waters. The ASA provides no mechanism for resolving such
potential disputes.137 If the salvor believes that the ASA does not apply, he
may bring an action under the traditional salvage and finds law in federal
district court, possibly exposing himself to regulatory interference from the
states he bypassed. Even under the best circumstances, the salvor is faced
with a difficult process of deciding in which state or which court to file his
claim and the possibility of expensive and time-consuming litigation. Some
commentators have suggested that this difficulty may encourage salvors to
go outside the scheme to access historic shipwrecks, subjecting them to
even more destruction and putting their archaeological integrity at greater
risk than under traditional admiralty laws. 138 Despite the intentions of
Congress, the ASA has not made historic shipwrecks within American
territorial waters safer from the plunder of unscrupulous salvors. However,
Congress’s decision to address this problem in 1987, along with its
expressed intention leading to the passing of the ASA, clearly indicate that
the need to protect historic shipwrecks has been understood for decades. If
historic shipwrecks have inherent value within the territorial waters of the
United States, why then should they remain unprotected outside, in
international waters?

V. CONCLUSION
When a domestic court seeks to exercise jurisdiction in matters with
bearing on international law or international relations, it is especially
incumbent upon that court to maintain the highest standards of integrity.
When American courts hear cases involving American salvage companies
and historic shipwrecks in international waters, observers in other countries
may be quick to attack any sense of impropriety. The application of
traditional salvage law and the law of finds to historic shipwrecks greatly
advantages the salvage companies engaged in the recovery of historic
wrecks. While it may be defensible, from a theoretical standpoint, to apply
these doctrines to historic shipwrecks, the rationale the courts cite is
disingenuous at best. If there is an ius gentium of maritime salvage, it is not
intended to apply to historic shipwrecks. Further, it is clear from a survey
of international, foreign, and domestic law in the United States that nations

137. See Mary Ann Becker, Regulating the Business of Culture: The Abandoned Shipwreck
Act—Can Preservationists, Salvors and Divers Sail in Calmer Waters?, 51 DEPAUL L. REV. 569,
585-86 (2001).
138. Murphy, supra note 1, at 178-79.
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and international bodies recognize a substantial difference between

traditional salvage situations and historic shipwrecks. If there is an ius
gentium of historic shipwreck salvage, it is moving firmly in the direction
of special protections for these cultural treasures and away from the
application of traditional salvage law. American courts applying these
doctrines to historic shipwrecks in international waters are ignoring trends
not only in international law, but also the approach laid out in American
domestic law. To apply one set of principles to shipwrecks in domestic
waters and another to those in international waters, to the advantage of
American salvage companies, is to invite the kind of criticism that could
cripple the cooperation which forms the basis of a strong international
community.