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Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels

Published online by Cambridge University Press:  06 June 2017

Michael White
Michael White*
Affiliation:
Centre for Maritime Law, University of Queensland
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Type
International Decisions
Information
American Journal of International Law , Volume 95 , Issue 3 , July 2001 , pp. 678 - 684
Copyright
Copyright © American Society of International Law 2001

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References

1 Detailed articles on these issues may be found in Symposium, Sunken Treasure: Law, Technology, and Ethics, 30 J. Mar. L. & Com. 165 (1999).

2 Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000), cert, denied, 121 S.Ct. 1079 (2001) [hereinafter Sea Hunt appeal]; see Sean, D. Murphy, Contemporary Practice of the United States, 94 AJIL 678 (2000)Google Scholar. The number and variety of the litigants listed in the case’s full title gives an indication of the case’s complex legal setting. In addition to Sea Hunt, Virginia, Spain, and the U.S. government, one other state (North Carolina), seven corporations, and one individual were also involved in the appeal.

3 121 S.Ct. 1079 (2001).

4 The law of finds is called “derelict” in English maritime law, but the substance is the same.

5 See Sea Hunt appeal, supra note 2, at 638, 644, 647.

6 43 U.S.C. §2101-2106 (1994). For a note on the Abandoned Shipwreck Act (ASA), see Anne, B. Giesecke, The Abandoned Shipwreck Act Through the Eyes of Its Drafter, 30 J. Mar. L. & COM. 167 (1999)Google Scholar.

7 43 U.S.C. §2105(a). For an earlier case under the ASA (involving The Brother Jonathan and California), see California v. Deep Sea Research, Inc., 523 U.S. 491 (1998). The case is discussed in Caria, J. Shapreau, U.S. Supreme Court Holds That Treasure Salvor’s “Actual Possession” of Shipwrecked Brother Jonathan Gives Federal Court Subject Matter Jurisdiction over Title Claim, 3 Art, Antiquity & L. 287 (1998)Google Scholar.

8 43 U.S.C. §2105(c).

9 Id. §§2102(f)(1), 1301(a)(2).

10 Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 47 F.Supp.2d 678 (E.D. Va. 1999).

11 Definitive Treaty of Peace Between Great Britain, France, and Spain, Feb. 10, 1763, 42 Consol. T.S. 279. This Treaty ended the Seven Years’ War.

12 Treaty of Friendship and General Relations, July 3, 1902, U.S.-Spain, 31 Stat. 2105. This Treaty was concluded following the Spanish-American War.

13 Sea Hunt appeal, supra note 2, at 640; see Columbus-America Discovery Group v. Adantic Mutual Ins. Co., 974 F.2d 450, 464-65 (4th Cir. 1992). In citing cases in which abandonment was found for Spanish wrecks, Sea Hunt appeal, supra note 2, at 647, the court quoted Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F.Supp. 953, 956 (M.D. Fla. 1993) (“no one . . . asserted an interest in the alleged vessel”) and Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 596 F.2d 330, 337 (5th Cir. 1978) (“the modern day government of Spain has expressed no interest in filing a claim in this litigation”).

14 43 U.S.C. §2101 (b).

15 Sea Hunt appeal, supra note 2, at 641.

16 On this point the court cites the House of Representatives Report—which itself incorporated a U.S. Department of State letter presenting U.S. policy concerning sunken U.S. warships—setting forth a presumption against abandonment that would also apply to “vessels within the U.S. territorial sea that, at the time of their sinking, were on the non-commercial service of another state.” Id.

17 Id. (quoting California v. Deep Sea Research, Inc., 523 U.S. 491, 508 (1998)).

18 Id. at 642.

19 Art. IV, §3 (“Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”).

20 Sea Hunt appeal, supra note 2, at 642 (quoting United States v. Steinmetz, 973 F.2d 212, 223 (3d Cir. 1992)).

21 Id. at 643.

22 See, e.g., id. at 647.

23 Id. at 644-46.

24 Id. at 644.

25 In this context the court noted that when “parties to a treaty both agree as to the meaning of a treaty provision, and that interpretation follows from the clear treaty language, we must, absent extraordinarily strong contrary evidence, defer to that interpretation.” Id. at 643 (quoting Sumito Shoji America, Inc. v. Avagliano, 475 U.S. 176, 185 (1982)). Later in the opinion, id. at 646, the court quoted the same case again, as well as El Al Israel Airlines Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999), and Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir. 1996).

26 Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, No. 2:98cv281, 1999 U.S. Dist. LEXIS 21752 (E.D. Va. June 25, 1999).

27 Sea Hunt appeal, supra note 2, at 647 n.2.

28 See, e.g., Geoffrey Brice, Maritime Law of Salvage 42-43 (3d ed. 1999).

29 Sea Hunt appeal, supra note 2, at 647 (quoting Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, No. 2:98cv281, 1999 U.S. Dist. LEXIS 21752, at *13 (E.D. Va. June 25, 1999)).

30 Claims of right to the remains of those lost give rise to strong emotions, which courts must then respond to in deciding rights of access to historic shipwrecks and the interplay of rights under international conventions. For a discussion of the rights of relatives to seek the bodies from the M/V Estonia, as against the wish of the Swedish authorities to preserve the sanctity of the site, see Berglund v. Sweden, App. No. 34825/97 (Eur. Comm’n H.R. Apr. 16, 1998) (unpublished admissibility decision), at <http://www.echr.coe.int>. The case is discussed in a report appearing at 1998 EUR. Hum. Rts. L. Rev. 638.

31 Sea Hunt appeal, supra note 2, at 647.

82 Certiorari was denied on February 20, 2001, 121 S.Ct. 1079 (2001).

33 37 Weekly Comp. Pres. Doc. 195 (Jan. 19, 2001).

34 Id. at 195.

35 Id. at 196. While the presidential statement may be regarded as generally consistent with international law, the reference to using the United States’ authority to protect sunken craft in the waters of a foreign state might give rise to some concern if it were understood to include direct enforcement action in a foreign territorial sea. The United States does not have the right to take such action without consent. No question of innocent passage, rescue, or self-defense would ordinarily be posed, particularly with respect to craft that sank long ago. Accordingly, one may presume that the effect of the presidential statement, insofar as territorial seas are concerned, is that the coastal state has a duty to protect the rights of the flag state, and that this duty is enforceable by standard diplomatic and legal means. The U.S. support of Spain’s rights in Sea Hunt would be one example of compliance with that duty.

36 See, e.g., David, J. Bederman, Rethinking the Legal Status of Sunken Warships, 31 Ocean Dev. & Int’l L. 97 (2000)Google Scholar (discussing 1982 UN Convention on the Law of the Sea in relation to sunken warships); Dromgoole, Sarah & Gaskell, Nicholas, Interests in Wreck, Parts 1 & 2, 2 Art, Antiquity & L. 103 & 207 (1997)Google Scholar; Dromgoole, Sarah & Gaskell, Nicholas, Draft UNESCO Convention on the Protection of the Underwater Cultural Heritage 1998, 14 Int’l J. Marine & Coastal L. 171 (1999)Google Scholar; see also Legal Protection of the Underwater Cultural Heritage: National and International Perspectives (Dromgoole, Sarah ed., 1999)Google Scholar.

37 The story, by Campbell, Duncan and Davison, John, appeared in The Independent (London) (Nov. 11, 1999)Google Scholar. It refers to the pillaging of North Sea sites containing the last remains of thousands of sailors who died in World Wars I and II. The wrecks also contain valuable scrap metal.

38 Department of the Environment, Transport and Regions, Defence Planning and Emergencies Branch, London, giving effect to the Protection of Wrecks Act, 1973, c. 33 (Eng.), and the Protection of Military Remains Act, 1986, c. 35 (Eng.).

39 An underwater archeological research permit is required from the Department of the Navy. Details are available from Department of the Navy, U.S. Naval Historical Center, Office of the Underwater Archeologist, Building 1, Washington Navy Yard, Washington, DC.

40 It is hoped AE2 will be jointly recovered by the Australian and Turkish governments and displayed in the Gallipoli peace park in Turkey. See Morris, Chris, Memorial for Gallipoli Dead, BBC News, Apr. 25, 2000 Google Scholar, at <http://news.bbc.co.uk/hi/english/world/europe/newsid_725000/725285.stm>. For details of its loss, see M. W. D. White, Australian Submarines: A History (1992). The details of the 1999 discovery of the wreck are available online at <http://www.navy.gov.au/history/ae2/default.htm>.

41 This case report has concentrated on ships, including warships, but for a recent U.S. case on salvage of a historic warplane, see International Aircraft Recovery, L.L.C. v. Unidentified, Wrecked and Abandoned Aircraft, 218 F.3d 1255 (11th Cir. 2000), cert. denied 121 S.Ct. 1079 (2001).

42 UNESCO Doc. CLT-96/CONF.202/5 Rev. 2 (1999), at <http://unesdoc.unesco.org/images/0011/001177/117780eo.pdf> [hereinafter Draft Convention]. For discussion, see supra sources cited note 36. A new draft should soon be forthcoming. See Consolidated Working Paper, Fourth Meeting of Governmental Experts on the Draft Convention on the Protection of the Underwater Cultural Heritage, UN Doc. CLT-2001/CONF.203/INF.3 (2001).

43 See Draft Convention, supra note 42, annex, paras. 1, 2.

44 UN Convention on the Law of the Sea, opened far signature Dec. 10, 1982, Art. 303, 1833 UNTS 397, 21 ILM 1261 (1982) [hereinafter LOS Convention]; see also id., Art. 149.

45 Fletcher-Tomenius, P. & Williams, M., Regulating Recovery of Historic Wreck in UK Waters: When Is a Salvor Not a Salvor? 2000 Lloyd’s Mar. & Com. L.Q. 208 Google Scholar.

46 International Convention on Salvage, Apr. 28, 1989, S. TREATY DOC. No. 102-12, available at <http://www.jus.uio.no/lm/imo.salvage.convention.1989/index.html> (entered into force July 14, 1996).

47 Id., Art. 30(1).

48 For the Australian position, see White, supra note 40, ch. 9.

49 43 U.S.C. §2105. Title is asserted in the United States and automatically transferred to the state. Id. §2105 (a), (c). A recent decision, Trueman v. Historic Steamtug ‘New York,’ 120 F.Supp.2d 228 (N.D.N.Y. 2000), has upheld the ability of a state then to transfer title to a private company.

50 LOS Convention, supra note 44, Art. 303(2).

51 I put aside the irresponsible salvors, whose activities often lead to damage or destruction of the historic wreck. It is in order to bring some regulation to their activities that there is a need for an underwater cultural heritage convention—but one that effectively accommodates the competing interests involved.

52 For discussion of this aspect of salvage, see Booth, Forrest, Court Treatment of Technological Development: Treasure Salvage’s Quantum Leap Forward, 27 Int’l Bus. Law. 292, 292–93, 295–97 (1999)Google Scholar.

53 The complex history of the case is summarized at Columbus-America Discovery Group v. Atlantic Mutual Ins. Co., 203 F.3d 291, 295-98 (4th Cir.), cert, denied 531 U.S. 918 (2000).

54 The history of the case is summarized at R.M.S. Titantic Inc. v. Haver, 171 F.3d 943, 952-54 (4th Cir.), cert. denied528 U.S. 825 (1999). For commentary, see John, D. Kimball, Case Note, 30 J. Mar. L. & Com. 691 (1999)Google Scholar; C.J. S. Forrest, Salvage Law and the Wreck of the Titanic, 2000 Lloyd’s Mar. & Com. L.Q. 1.