Some of the commonly accepted norms of
treasure-diving are being challenged after the 4th Circuit Court of Appeals has issued an opinion regarding the artifacts located in the wreckage of the
Titanic.
[1] Though the opinion comes in an
in rem[2] proceeding, it has serious criminal implications, mainly in the way it challenges the “finders-keepers” policy, which the court said “is but a short step from active piracy and pillaging. … How long after a ship runs aground would it take under a free finders-keepers policy before scavengers would be crawling over the wreck for property to deprive the owner of his property rights?”
[3] The implications are stark because the
Titanic went down in international waters 400 miles off Newfoundland, Canada. Such a ruling bears closer inspection.
The case is
R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel … believed to be the R.M.S. Titanic.
[4] For over ten years, the exclusive “salvor-in-possession” of the
Titanic has been R.M.S. Titanic, Inc. [hereinafter RMST].
[5] Nearly two years ago, RMST requested that the district court “enter an order awarding it ‘title to all the artifacts (including portions of the hull) which are the subject of this action
pursuant to the law of finds.’"
[6] Alternatively, if the court would not award it title, RMST sought a salvage award in the amount of US$225 million.
[7] Nearly 1,800 artifacts were retrieved from the
Titanic in 1987 and taken to France, where RMST claimed “a French administrative agency had already awarded it title to those artifacts.”
[8] The district court “(1) refused to grant comity and recognize the decision of a French administrator awarding RMST title to the 1987 artifacts, and (2) rejected RMST’s claim that it should be awarded title to the artifacts recovered since 1993 under the maritime law of finds.”
[9]The Court of Appeals vacated the part of the district court’s ruling that concerned the 1987 artifacts because the court did not have
in rem jurisdiction over those artifacts, whether actual or constructive.
[10] It’s a highly technical analysis that doesn’t have much bearing on the larger issue of this opinion, so we won’t discuss it.
The larger question regards the difference between the law of salvage and law of finds, which “serve different purposes and promote different behaviors.”
[11] The law of salvage, “has a favored, indeed a dignified, place within the law of nations or the
jus gentium. The law of finds, however, is a disfavored common-law doctrine rarely applied to wrecks and then only under limited circumstances.”
[12]The law of salvage “gives potential salvors incentives to render voluntary and effective aid to people and property in distress at sea. … Without some promise of remuneration, salvors might understandably be reluctant to undertake the often dangerous and costly efforts necessary to provide others with assistance. … For thousands of years, maritime law has acknowledged the need to reward those who freely accept the responsibility of rescuing lives and property at sea.”
[13] Salvors are given a maritime lien on the salved property, which “attaches to the exclusion of all others, including other potential salvors as well as the property’s true owner.”
[14] The salvor, however, does not receive title to that property, and he assumes the “duties of good faith, honesty, and diligence in protecting the property in [the] salvors’ care. … Because a salvor acts on behalf of a true owner, even when that owner has not been identified, it serves as a trustee of the owner’s property and is therefore not permitted to use that property for its own purposes.”
[15]The law of finds, in contrast, “expresses the acquisitive principle of ‘finders, keepers’ – namely, that the first finder obtains title over unowned property that it has reduced to its possession.”
[16] In admiralty, this principle was applied only to “objects found in the state of nature, such as marine flora and fauna, that were never previously owned and could thus be reduced to possession by an original ‘finder.’”
[17] As applied to shipwrecks, it is done so only to “long-lost and abandoned shipwrecks, which, having once been owned, are no longer the property of anyone and so revert to the state of nature.”
[18] Courts, however, apply a presumption that title to property lost at sea “remains with the true owner, regardless of how much time has passed.”
[19] In fact, to establish a claim under the law of finds, “a finder must show (1) intent to reduce the property to possession, (2) actual or constructive possession of the property, and (3) that the property is either unowned or abandoned.”
[20]The implications of this are enormous. Putting aside the Court’s considerations that the law of salvage does not apply well to historic wrecks and the enormous public interest in historic wrecks,
[21] it leaves treasure-divers and -finders at risk of criminal prosecution for theft of cultural artifacts; one never knows when a true owner may make a claim, and a true owner might be a nation, such as Spain or Greece. For example, Greece has recently opened most of its coastline for sport-diving, but there are great concerns that the antiquities in the Mediterranean might be “stolen.”
[22] Off the coast of San Diego, American Indian artifacts can be found, but collecting them is illegal.
[23] And Malta has recently filed charges against six divers, “accusing them of stealing and destroying priceless underwater heritage from Maltese territorial waters.”
[24] It is fair to ask what ownership rights there are in artifacts thousands of years old, but countries are allowed to regulate their territorial waters, and the multilateral
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, compels member nations to “protect the cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export.”
[1] Court: Salvage Company Does Not Own Titanic Artifacts, Associated Press, Feb. 1, 2006.
[2] Commonly used in Admiralty cases, in rem means “against a thing” and it involves the determination of the status of a thing, and “therefore the rights of persons generally with respect to that thing.” Black’s Law Dictionary 809 (8th ed. 2005).
[3] Id.
[4] No. 04-1933 (4th Cir. 2006).
[5] Id. at 2.
[6] Id. (emphasis in opinion).
[7] Id.
[8] Id.
[9] Id. at 2-3 (citing R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel … believed to be the R.M.S. Titanic, 323 F. Supp. 2d 724, 744-45 (E.D. Va. 2004).
[10] Id. at 13.
[11] Id. at 14.
[12] Id.
[13] Id. at 14 (internal citations omitted).
[14] Id. at 14-15.
[15] Id. at 15 (internal citations omitted).
[16] Id. at 15-16.
[17] Id. at 16.
[18] Id.
[19] Id. (citing Columbus-America Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 461 (4th Cir. 1992) (“Once an article has been lost at sea, ‘lapse of time and nonuser [sic] are not sufficient, in and of themselves, to constitute an abandonment.’”).
[20] Id. at n.3.
[21] Id. at 21-23.
[22] See, e.g., Helena Smith, Greece’s Seas: the Looters’ Next Destination, Dec. 6, 2005.
[23] See Offshore Relics Being Plundered by Divers, 10News.com, Jul. 13, 2005.
[24] Karl Schembri, Malta Police File Charges Against Divers in First Ever Treasure Pilfering Case, UnderwaterTimes.com, Dec. 28, 2006.
