Shipping Law: The significance of underwater cultural heritage and conflicting legal interests
During April 1998, excavations for the construction on an office building near the San Rossore train station in the classical port of Pisa revealed nine Roman ships and confirmation that the harbour was one of the greatest ancient Mediterranean ports. The discovery of the vessels, which include a warship, together with their ancient cargo and remains of a Roman soldier and his dog, will allow marine archeologists to extend their knowledge of Roman shipbuilding techniques and of classic trade. The cost of excavation and the restoration process is estimated at $6 million. Needles to say, the constructing on the site has been abandoned, with the inevitable accompanying losses to the developer of the station building site.
Eight months after the Norwegian-registered tanker Tricolor sank in the North Sea on 14 December 2002, salvage teams began to raise the first section of the vessel and its cargo of thousands of luxury cars. The wreckage is to be cut into nine pieces and brought to the Belgian port of Zeebrugge. The vehicles are expected to end up in scrap yards. The wreckage has been sitting on the seabed 35 m below the surface in one of the world’s busiest sea lanes. At least two other ships have already struck the wreck.
NR 1, the first deep submergence vessel using nuclear power, was launched at Groton on 25 January 1969. An ocean engineering and research submarine, the vessel maneuvers by four ducted thrusters in the front and the rear. Her missions have included search, object recovery, geological survey, oceanographic research and installation and maintenance of underwater equipment to a depth of almost a kilometer. NR 1’s unique capability to remain at one site and completely map or research an area with the highest degree of accuracy has made the vessel one of the most valuable contributors to marine exploration and recovery in history.
The vessel’s features include extendable bottoming wheels, three viewing ports, exterior lighting and television and still cameras for colour photographic studies, an object recovery claw, a manipulator that can be fitted with various gripping and cutting tools and a work basket that can be used in conjunction with the manipulator to deposit or recover items in the sea. Its travel is limited only by its supplies.
Using the NR 1, a large concentration of shipwrecks, including one dating to the time before Christ, have been found littered along an historic trade route between North Africa and Italy. Following the loss of the space shuttle Challenger in 1986, the NR 1 was used to search for, identify and recover critical parts of the space craft.
Before the revolutionary exploits of the NR 1, no major site has ever been explored in water deeper than two hundred feet. Because of this limitation, scientists could only explore about five percent of the ocean floor, but since NR 1, virtually the entire seabed is becoming accessible.
Similar technological innovations helped submarine expeditions of the seabed between Rome and Tunis recover artifacts from eight wrecks, five of which date between 100 B.C. and 400 A.D. A computerized robot named Jason was used to gently scoop up a total of 115 artifacts, including precious glass and, without damaging a single object, delivered the treasure to a submersed elevator for transportation to the surface.
From a recreational diver’s point of view, the wreck site of eleven German WW1 battleships, five battle cruisers, eight cruisers and fifty destroyers sunk in 1919 upon the orders of their commander-in-chief near the Orkney Island, is the best dive site in the world. Lying in a depth of twenty four to twenty five metres and with visibility generally good, the diving opportunity is well publicized in the diving community and is a popular attraction.
In 1944 the US navy launched an attack on the Japanese Imperial Fleet in the waters of Truk Lagoon, Micronesia resulting in fifteen Japanese naval ships, six tankers, seventeen cargo ships, twenty five American planes and two hundred and fifty Japanese planes lying at the bottom of the lagoon. Recreational divers still uncover various personal items and skeletons of the victims amongst the jeeps and jet aircraft on the wrecks.
The competing interests in the above examples of various wreck sites and the advances in technology have, in many instances, turned the competition into conflict. Before any attempt can be made to regulate these interests, the nature and the different levels of the interests and the significance of the various sites and relics must be analyzed and considered.
The influence that underwater archeology and commerce are having on the future of the law pertaining to underwater cultural heritage is considered herein.
2. Underwater Cultural Heritage
Although “cultural heritage” are often differently defined by varying cultures, the definition proposed by Strati seems to best summarize its essence: “Monuments are an expression of the creativity of the past and a source of valuable information; they reveal, apart from material evidence, spiritual values created by man in the process of socio-historical practice. The notion of archaeological heritage is primarily related, though not restricted, to the material evidence of the past which, once preserved, can ensure access to it”. Underwater cultural heritage refers to that part of the cultural heritage which is found underwater in both seas and inland waterways.
Two broad categories of underwater cultural property in the form of shipwrecks and submerged settlements are distinguished, which is useful in the legal comparison between “movable” and “immovable” cultural property. Shipwreck archaeology is not confined to the ancient past, it includes modern, prehistoric and historic, western as well as non-western wrecks. The main areas where these wreck sites are located are the Mediterranean, the Baltic Sea, the coasts of America and the Caribbean Sea which had busy traffic areas in the past.
Underwater cultural property also includes submerged sites which were once dry land. As a result of land subsidence and a rise of water level many caves and stone huts of the late ice-age man are now deep under the water. Earthquakes have caused, for instance, the sinking into the sea of ninety per cent of the town of Port Royal (Jamaica) in 1962.
Ships have been described as “microcosms” of the technologies that created them and the societies that used them. They present the archeologist with important information and evidence of naval architecture and shipbuilding, modes of propulsion, rigging and steering, indications of original and specialized purposes of ships and of the society on board. Ships therefore provide a valuable “data base” of everyday life in a past civilization.
The artistic value of some of the relics is significant. As distance travel in ancient times were mostly done over water and most of the journeys were undertaken for purposes of either trading or looting in colonization and exploration escapades, one can only begin to imagine the valuable pieces of art which can still be found on the sea bed along these routes.
Cultural remains have a special value for the people who created them. War-graves of naval warships lost in battle are of historical and national importance. Individual items lost at sea have in many cases significant spiritual or religious value.
Future generations are to an extent educated by the past, which makes the exploration and preservation of cultural heritage so important.
Even though it is difficult to consider the intrinsic economic value of underwater cultural heritage in the light of its huge historic, cultural, religious, educational and anthropological significance, one must take cognizance thereof, as the often popular myth of underwater treasure have caused many of the cultural heritage sites to have been looted and plundered . Tourism presents the extrinsic economic worth to underwater cultural heritage. Tourists are attracted to underwater finds, whether still submerged or in a museum. Profits derived therefrom, in turn, contribute to the State’s economy.
3. The conflicting interests
Before national cultural policies, which dictate the international legal position of States on cultural matters, can be formulated, the different interests involved in the preservation of cultural heritage must be considered.
3.1 At national level, the main interest groups are the following:
3.1.1 The identifiable owners
Submerged remains once had an owner and issues such as succession in ownership, salvage and remuneration claims and insurance claims make the question of determining whether a wreck should be regarded as res derelictae a primary concern. Before a salvor can acquire ownership by way of possession, an effective act of abandonment by the owner will have to be proved. In jurisdictions where the concept of private ownership is respected, the State will be reluctant to intervene and deprive identifiable owners of their title.
They contend that cultural heritage is an eminently public resource which bears witness to the history of a culture and of a nation whose spirit it perpetuates. It is argued that underwater cultural heritage should be placed under the control of a more protective agency and that it should be protected for the benefit of the people at large.
3.1.3 Commercial salvors
The commercial interests of salvors are served by the quick recovery of spectacular objects. Treasure salvage has therefore the ability to attract investors to subsidize expeditions with promises of returns on their investments if a project is successful. As a result, finance is often aimed at salvage for economic gain and not for the purpose of preserving underwater cultural heritage.
3.1.4 Recreational divers
Their desire for unrestricted access to shipwrecks and sites for recreational purposes conflicts both with the salvor’s demand for exclusive use of the wreck and the archaeologists concern for ordered collection.
3.1.5 Auctioneers and collectors
Their only concern is for the acquisition of sunken treasures irrespective of the manner of the recovery or whether the preservation thereof has any greater significance for future generations.
3.1.6 The State
Representing the common public interest, the Coastal State’s heritage laws which invest ownership of underwater relics to the State are in philosophical conflict with the rights of individuals who are owners or who claim the right to salvage archaeological objects.
3.2 Internationally, the conflict is between:
3.2.1 The flag State of the wreck
3.2.2 The coastal State on whose continental shelf the relics are located
3.2.3 The flag State of the vessel which undertakes the research or recovery operations
3.2.4 The international community
3.2.5 Art importing States
3.2.6 Art exporting States
The conflict of interests may even involve nations that attribute different meanings to a particular wreck, the one may require it to be removed forthwith to allow fishing activities or maritime trade to continue or gas pipelines to be laid, while another state may attach significance to the historic find in view of its people’s heritage and history and therefore require it not to be removed.
Not all coastal states are disinterested in foreign wrecks in their territorial waters. In January 1977 Kenya declared the wreck of the Portuguese ship San Antonio de Janna which sank off Mombassa in 1697 to be a monument. The ship had been involved in the siege of Fort Jesus during which the fort had been captured by the Arabs from the Portuguese. The Coastal State therefore regarded the vessel as part of its own history and wished to preserve it.
Marine biologists may have an interest in a particular marine habitat and that it should not be disturbed. Commercial, navigational and naval interests on the other hand, require the obstruction and potential danger of a wreck to be removed without any monetary or other advantage.
4. Underwater archaeology
This form of archaeology has been defined as “the recovery and interpretation of human remains and cultural materials of the past from underwater”. In the past diving and archaeology were separate activities and archaeologists on the surface supervised diving activities on an archaeological site. The results were fatal for archaeology as the divers failed to make proper drawings of the sites before the disturbance and the search for artifacts destroyed the archaeological value of sites.
The situation changed from 1958 when the first classically correct underwater excavations were started. Advances in convenient and efficient sub-aquatic equipment contributed to the improvement of underwater archaeology since the Second World War. As it exists today, marine archaeology derives from several distinct sources, such as marine salvage, maritime history, classical archaeology, archaeometry and cultural resources management.
Recent years have seen an even further increase in the protection of underwater cultural heritage in State practice and doctrine. Various States have enacted specific legislation to protect underwater remains and others have expanded their competence to regulate access to underwater sites outside of the territorial sea. The UN have initiated a number of conventions dealing, inter alia, with underwater cultural heritage. The attention of legal scholars and their concern with the problems that the preservation of underwater heritage may pose to the Law of the Sea, appear to have culminated in what is now referred to as the Law of Cultural Heritage .
5. Salvage and Underwater Archaeology
The laws of salvage have evolved from the Roman law doctrine which awarded compensation from the owner to those who voluntarily preserved, protected or improved another’s property. The raising of sunken treasure has, since the Rhodian Maritime Code, given rise to salvage awards.
The protection of underwater cultural heritage has never been the objective of salvage, which concerns itself in almost all cases with the compensation of the salvor for the rescuing of maritime property in distress. Salvors are not interested in conducting their rescue operations in an archaeologically responsible manner and are not concerned with sharing their finds in the public interest. Salvage law is therefore an inappropriate means of protecting underwater cultural heritage.
Interestingly, archaeologists have always maintained that ancient wrecks are best preserved undisturbed and in salt water. It is in fact when they are moved or if the equilibrium of their environment is disturbed by unnatural activity such as salvage operations that the relics are in danger of deterioration. States have started to enforce the protection of ancient wreck at the cost of the salvors and the Abandoned Shipwrecks Act of the United States is an example of where the Law of Salvage was excluded from protected underwater cultural property. In some instances the courts even added “the degree to which the salvors have worked to protect the historical and archaeological value of the wreck” as a further factor when fixing an award for salvage.
The archaeological community has by its nature, a strong formal structure with perpetual membership and interests. It also has strong ties with governmental departments in whose employ most archeologists are. Its political lobbying is therefore strong compared to the interests of sport divers and particularly salvors who have very little common purpose when one considers the competitive nature of their industry. However, certain archeological interests have come to realize that, it is in their interests to attempt to create a workable regime and to take the interests of the other groups into account , especially in view of the fact that the others are often first to come across sites which may be of great significance to archeology.
6. Underwater archaeology, salvage and ownership
In order to determine the rights pertaining to the ownership of a wreck one needs to ascertain the jurisdiction a state possesses over its own wrecks. On sinking, a ship ceases to fly the flag of its flag State and is no longer under the physical control of the crew employed by its owners. However, the jurisdiction of the flag State over the vessel remains if the link of ownership of the vessel continues to exist. The flag State, a national of the flag State, or even an owner who is not a national, but whose ownership is governed by the laws of the flag State, may own the vessel and form the link between the flag State and the vessel, affording the flag State jurisdiction over the vessel .
Most legal systems stipulate their own laws with regard to the loss of ownership of abandoned property. In the case of wreck, the law of the flag State would determine whether the owner’s conduct resulted in the loss of ownership. If a wreck is abandoned by its owner and becomes a res nullius, the link between the flag State’s legal system and the wreck will no longer exist and the flag State’s jurisdiction and legislation will cease to regulate the wreck. The flag State will then be in the same opposition as any other State as regards to the res nullius wreck.
Viewed from a different perspective, in the case of another State’s wreck in a coastal State’s continental shelf, the question of jurisdiction will also be determined by the ownership issue.
Once and if it is found that ownership in a wreck has been lost, it must be determined whether anyone else has occupied the wreck subsequently and possibly acquired ownership thereby. The law according to which this question will be answered will probably be the national law of the occupier, as the lex rei sitae applies only to immovables, which wreck is not . If the occupier’s national law permits the acquisition of ownership by occupation, then the wreck will be owned by him and the coastal State must respect this right of ownership.
It would therefore seem that anyone can claim a res nullius wreck . A coastal State’s claim to jurisdiction will therefore have to be founded on the establishment of a link such as ownership or that of one of its nationals who has exerted some form of physical control over the wreck. The claim of the first linked State will therefore prevail .
The law of salvage assumes that the property is owned and that the owner is never divested of his title. The law of finds, as applied in United States admiralty courts, grants title to the first party to discover and possess objects which have never been owned or which are long lost and abandoned. This finds law, which is also found in the English common law, reflects the above claim of the first to establish possession of the abandoned wreck or artifact.
7. The future
The different and often conflicting interests in underwater cultural heritage are multiplying as technology improves. In a separate assignment, attention will be afforded to the laws regulating these various disciplines which, by their nature and the various lobbies for their acknowledgement, demand consideration.
From the above it is clear that there is sufficient importance in underwater cultural heritage to be formalized as a multi-use resource and, even though it is not a natural resource, a need has developed for it to be protected with similar vigour and efficiency. With the advances in sub-aquatic research and exploration, the significance of underwater cultural heritage has been recognized for the benefit of all the various interests therein.
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BL Allen, Coastal state control over historic wrecks situated on the continental shelf as defined in Article 76 of the Law of the Sea Convention 1982, Institute of Marine Law, Special Publication 14, 1995