This article is written by Pranav.R, from the School of Law, SASTRA University. This exhaustive article deals with the laws related to salvage and recovery of treasure from shipwrecks.
The advanced technology has been promoted to excavate historical shipwrecks and recover the property which would have economic and historic significance. There are millions of shipwrecks that have been abandoned or left undiscovered. The salvage companies play a vital part in the recovery of these lost treasures and an absence of proper legislation to reward these salvors is one of the key areas of concern. Due to the lack of a comprehensive maritime law relating to the title of salvaged property from the international waters, it has created international disputes in the claim for the title to such property. However, there are few laws that have attempted to govern the salvage activities with an aim to resolve disputes.
Certain examples of some of the shipwrecks containing treasure
The oceans and coasts are scattered with thousands of shipwrecks which were way back in time and are now discovered to have millions of treasure. The salvage companies have attempted to recover these shipwrecks with hope for a reward based on the value of the salvaged property and the risk involved. The technology is in its peak which has facilitated discovering and recovering shipwreck treasure which happened 200 years ago. Some of the notable Shipwrecks which carried treasure are:
On the coast of Caesarea in February 2015, conducted a salvage excavation at the site and recovered more than 2,580 coins of gold weighing a total of 7.5 kg.
Mr Mei Fisher found on conducting a salvage experiment in the waters off Florida found the cargo of a treasure packed galleon named Nuestra Senora de Atocha which sank in 1622. He discovered thousands of gold and silver coins which is estimated to be around $400 million.
Black Swan Project
The Black Swan Project is believed to be the greatest recovery of gold treasure in history. The treasure found on the remains of the Spanish warship Nuestra Senora de las Mercedes which sank off Portugal in 1804 is the greatest recovery of gold which is estimated to be worth $500 million.
Existing international laws
There has been a huge debate relating to the ownership of the shipwrecks discovered in international waters. Since the existing laws of maritime law are ambiguous there have been several disputes pending in different countries regarding the ownership of shipwrecks found in international waters. The salvage company, finders, and the country which is associated with the shipwrecks are the predominant parties to the dispute to ownership. The existing laws and international conventions which govern shipwrecks and salvage are
- Traditional Doctrines
- The 1982 Convention on the Law of the Sea
- The 1989 Salvage Convention
- The 2001 Convention on the Protection of the Underwater Cultural Heritage
Law of finds and Law of salvage are the two doctrines that are recognised in traditional maritime law. One of the doctrines is applied when there arises a dispute regarding the ownership of a shipwreck found in the exclusion of another.
Law of Salvage
The word salvage means the rescue of a wrecked or disabled ship or its cargo from a loss at sea. The main underlying motive behind salvage which involves a high level of danger is to get compensation for the operations conducted which normally is the percentage of the value of the salvaged property. An activity of salvage is undertaken with a belief of being compensated. The act of salvage is a voluntary service rendered with an intention to save life and property. The reward which is given to salvor is not given on the principle of quantum meruit but given as an award to the risk involved in the perilous activity to recover the wrecked property. A Salvor to seek compensation or award, a salvor has to establish the following things
(1) The property must be in marine peril.
(2) The salvor must attempt the operation voluntarily.
(3) The salvor must be at least partially successful in recovering the property.
Under the salvage law, it is presumed that the vessel has not been abandoned. If the vessel is not abandoned by its owner the salvor on recovering the property will not get the title of the property, however, he is entitled to compensation. To seek compensation the salvor should file a notion in the nearest court of jurisdiction. If the owner refuses or is unable to pay compensation then the salvor enjoys a maritime lien that allows possessory interest on the property until the payment of the award.
However, the law of salvage poses many limitations
- There is no uniform application of the law of salvage while the determination of title. All countries have interpreted the law of salvage differently which gives rise to many conflicts.
- The Law of salvage doesn’t provide for the amount of deference that should be given to the original owner of the salvaged property.
- If the original owner is unidentified the question to whom the title should be awarded is left unanswered. The application of this doctrine gives rise to disputes between the country of origin, finder, or any other third party who has a better claim.
Law of Finds
On the contrary, if a vessel or property is abandoned and there is no owner to the shipwreck in such cases law of finds awards the title to the finder of the shipwreck. Under this doctrine, the salvor is allowed to keep the title of the property salvaged. Under the law of finds, the salvor has to prove these essentials to assert his claim of title to the salvaged property. These include:
1) There should be a presence of an intention to keep the property at his possession,
2) There should be an actual or constructive possession of the salvaged property,
3) The property salvaged should be abandoned or unowned.
Generally, a salvor could easily prove the first two requirements. But however, it poses a heavy burden on the salvor to prove that the property is not owned and abandoned to claim the title. However, the courts apply this doctrine reluctantly because the real owner of the property is deprived of the title to the property. The determination of abandonment is a crucial question under salvage law because it is the deciding factor on which doctrine applies. If there is no owner the law of find is applicable where the salvor is entitled to the title of the property. If the property salvaged is not abandoned then the law of salvage applies and the salvor is only entitled to an award and not the title of the property. The abandonment can be proved in the light of time. Historic shipwrecks are assumed to be abandoned. Treating historic shipwrecks under the law of finds has received many criticisms because it ignores the claim of the country from which it originated and promotes desperate salvors to excavate historic shipwrecks that have valuable historic value to claim the title.
The 1982 Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea(UNCLOS) was the first international treaty that addressed many issues regarding the navigational rights, territorial sea limits, economic jurisdiction, legal status of resources on the seabed, etc. This convention was widely accepted by many countries and was ratified by 168 countries. Prior to UNCLOS, no country claimed ownership to historical shipwreck other than those found around the three nautical miles from the coast. Thus the importance of historical shipwreck and the right to ownership and preservation was recognised after this convention.
Article 95 of UNCLOS gives immunity to warships of jurisdiction to any other states other than the flag state. Article 96 of UNCLOS provides immunity to jurisdiction to any other states other than the flag state of ships operated for non-commercial purposes on high seas. These two articles are cited because any shipwreck which has the flag of the country found on the seabed of the country, the flag state has a claim towards the title of those shipwrecks.
UNCLOS addresses historical shipwreck under Article 303 and 149. Article 149 of UNCLOS emphasizes the preservation and disposal of the shipwreck of historical significance in accordance with the benefit of mankind. It also recognises the preferential right of ownership to the country of
- State or country of origin
- the State of cultural origin
- the State of historical and archaeological origin.
This article is very ambiguous in nature because it does not clearly depict the extent or the scope of the applicability of the article. This article fails to elaborate on the manner of preservation and disposal of historic shipwrecks. The main flaw is that among the three countries recognised above, the article fails to elaborate which of these countries gets the actual preferential right when it involves multiple countries’ claims to a historic shipwreck. These limitations pose a huge problem in deciding the title of the property and has created many international disputes between nations.
Article 303 of UNCLOS emphasizes the protection of historic shipwreck as a duty of the state and gives the absolute right of ownership of the shipwreck found in the seabed within 24 nautical miles from the country’s coastline. Article 303 provides scope for subsequent laws to regulate and protect historical shipwreck and explicitly declares that Article 303 will not pose a limitation to apply those laws which are going to be subsequently framed to protect historical shipwrecks. Though the articles under UNCLOS have several limitations it opened the eye of several nations about the importance of historical shipwreck and the ownership right of the same and calls for more specific laws to address these limitations in the matter pertaining to ownership of historical shipwreck treasures.
The 1989 Salvage Convention
The International Maritime organisation promulgated the Salvage convention in 1989 to update the maritime international laws. This convention was replaced by the Brussel convention on salvage which had the underlying principle of “No cure, No pay”. This convention recognises the right of salvors and has ardently adopted the law of salvage over the law of finds. The convention recognises the need for environmental protection and awards special compensations to salvors who have salvaged a shipwreck which could cause significant environmental damage in the seabed which it was located. After UNCLOS the Salvage Convention 1989 has subsequently addressed the issue of salvage and has created clear provision which recognises the right of award for salvors and their rights of marital lien under Chapter 3 of the Convention. However, the Convention doesn’t include historical shipwreck under the definition of ‘vessel’ in Article 1. However, Article 30(1)(d) leaves it to the discretion of the state to reserve the extension of the meaning of property to prehistoric, archaeological property which is found in the seabed. With no reservation made by the country, it is a rule that property also includes cultural and historical property found on the seabed. Article 12 and 13 of the Convention does not further define what constitutes a reward for salvaged operation. So a salvor by using this loophole could also claim money or a part of the salvaged property itself as a reward. The convention has also failed to prescribe the procedure which should be followed when the owner is not known and the position of salvor and title of salvaged property during those circumstances.
The 2001 Convention on the Protection of the Underwater Cultural Heritage
In November 2001, the United Nations Educational, Scientific and Cultural Organization adopted the Convention on the Protection of the Underwater Cultural Heritage. The main focus of the convention is to protect the cultural heritage on the sea bed and prohibit commercial exploitation of the underwater cultural heritage for monetary gains. It imparts the duty of the state to protect salvage operations which would harm the cultural environment and it creates a huge burden on the state to conduct excavation and preserve the underwater environment. It creates a huge financial burden on the states where the funds can be used effectively for other concerns. Such a burden on the state explicitly makes the law of salvage and law of finds inapplicable and completely bans the salvage operation for commercial purposes. The definition of cultural heritage in relation to anything which belongs in the sea bed for more than 100 years of time is broad enough to even include a coke bottle that is more than 100 years old will be regarded as a cultural heritage. The government cannot bear huge expenses without any profit motive and also discourages other private owned salvage companies. Due to non-commercialisation and absence of profit motive will create the technology slowdown. The ban on commercial salvage operation will lead to an endangered situation to the salvage industry and there will be no discoveries that would promote cultural education which the treaty intends. The treaty represents only the ideas and concerns of the archaeologist but did not solve any dispute regarding the applicability of the law of salvage and law of finds. This treaty by banning profit motive puts itself into a limitation by discouraging the salvors to undertake discoveries.
Some important or intriguing case laws
There are many landmark and notable judgments which were passed in respect to the law of salvage and law of finds. The recent landmark judgments in the law of salvage are as follows.
Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel
An American shipwreck exploration company that filed in rem complaint in admiralty against the 1804 wreck of the Spanish frigate Nuestra Senora de las Mercedes. Odyssey discovered Mercedes which had millions of coins and gold on the continental shelf 160 of Portugal approximately 100 miles (161 km) west of the Straits of Gibraltar. The company demanded possessory rights and ownership over the items it recovered and that remained at the salvage site under the law of finds. In the alternative, Odyssey demanded a salvage award for its services. The Kingdom of Spain, the Republic of Peru, and 25 alleged descendants of those aboard the vessel filed claims against the property or res. Spain moved to dismiss and vacate the arrest warrant for lack of subject matter jurisdiction of a U.S. admiralty court over artifacts that were salvaged from a sovereign immune Spanish warship without its authorization. The U.S. District Court for the Middle District of Florida granted Spain‘s motion. Odyssey appealed the decision in the U.S. Court of Appeals for the Eleventh Circuit. However, the Court upheld the ruling on Spain‘s motion to dismiss.
Who can claim the title of the shipwreck?
The court found that the evidence record supported the earlier factual determination that the res was indeed the wreck of Mercedes and, for purposes of sovereign immunity, was immune from arrest pursuant to the Foreign Sovereign Immunities Act. Therefore, the district court lacked subject matter jurisdiction over the company’s claim. Under U.S. law and policy, the cargo and even private property effects of the crew and passengers would be subject to sovereign immunity of the shipwreck and should be immune from arrest under the law of salvage. The Eleventh Circuit recognized that there was a trove of private material being transported aboard the Mercedes at the time that it sank, but found that such material was still sovereign in nature because citizens of Spain were transporting it aboard a sovereign vessel during a time of war. Because Spain was acting in a sovereign manner in transporting the cargo, and because the Mercedes was a Spanish Royal Navy vessel, the FSIA preempted any claim by Odyssey that it should be granted ownership of the cargo of the Mercedes via an in rem action in an American court. The Eleventh Circuit also determined that the cargo aboard the Mercedes, even if it was privately owned, was still part of the wreck and subject to the sovereign immunity of the Spanish warship. It also affirmed the district court‘s order to release the res (silver, gold, and other artifacts) to the custody of Spain.
A comprehensive maritime time law is needed to address the issues in relation to the title of historic shipwrecks. The countries should legislate their own maritime laws to promote salvage companies and encourage them to discover shipwrecks, treasures, and other artifacts that have rich cultural and historic value. The salvors should be given reasonable awards which creates a competitive environment for the salvage industry. However, having the commercial aspect on one side the state should also protect the cultural environment which has historic value underwater. A maritime law that recognises the rights of salvors, addresses the issue pertaining to title and laws pertaining to the title of shipwrecks or treasures found on the international water is needed to resolve the ongoing international disputes between countries. A collaborative agreement between salvors, archaeological departments, and the government could contribute to developing the historical value of the country which can generate revenue in the form of tourism and which in turn promotes the salvage industry.
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