Abandoned Shipwreck Act (ASA)
Reproduced from Encyclopedia of Underwater and Maritime Archaeology,
edited by James P. Delgado, British Museum Press, London, 1997.
Law of 1987 that establishes government ownership over the majority of abandoned shipwrecks located in waters of the United States of America and creates a framework within which shipwrecks are managed. Enacted in 1988, it affirms the authority of State governments to claim and manage abandoned shipwrecks on State submerged lands. It makes the laws of salvage and finds not apply to any shipwreck covered under the Act and asserts that shipwrecks are multiple-use resources.
Since the 1950s, citing the Submerged Lands Act of 1953, State governments have claimed title to and control over abandoned shipwrecks on State submerged lands. By the 1980s, over half of the States had enacted laws and established programmes to manage abandoned historic shipwrecks in State waters. However, Federal Admiralty Court also claimed jurisdiction over abandoned shipwrecks. Admiralty courts often treated historic shipwrecks as commodities lost at sea that were in marine peril and in need of salvage to be returned to commerce. Salvage awards often disregarded a shipwreck's historical or archaeological values, thereby causing a loss of important scientific information. Nonetheless, some States prevailed in their claims to title and management authority over abandoned shipwrecks in State waters. The result was confusion and inconsistency from court to court and from State to State over ownership and regulatory control of abandoned shipwrecks.
These problems were resolved by the Abandoned Shipwreck Act. Under the statute, the US Government asserted title to three classes of abandoned shipwrecks located within three nautical miles of the US coastline and in the internal navigable waters of the United States. The Act covers abandoned shipwrecks that are embedded in submerged lands, abandoned shipwrecks that are embedded in coralline formations protected by a State, and abandoned shipwrecks that are on submerged lands and included in or determined eligible for inclusion in the National Register of Historic Places. Upon asserting title to these shipwrecks, the US Government transferred its title to the government entity that owns the submerged lands containing the shipwrecks. As a result, State governments have title to shipwrecks located on State lands, the US Government has title to shipwrecks located on Federal lands, and Indian tribes have title to shipwrecks located on Indian lands. However, the US Government continues to hold title to sunken US warships and other shipwrecks entitled to Sovereign Immunity, no matter where the vessels are located. Such vessels are not affected by the statute.
One of the statute's most important provisions specifies that the laws of salvage and finds do not apply to abandoned shipwrecks claimed by the government under the Act. This provision removes those shipwrecks from the jurisdiction of Federal Admiralty Court. It means that the shipwrecks and their cargo and contents are no longer treated only as commodities lost at sea and in need of salvage. This means that an historically valuable shipwreck can be treated as an archaeological or historical site instead of a commercial property.
Another important provision of the statute addresses rights of public access. Shipwrecks are identified as resources having multiple values and uses that are not to be set aside for any one purpose or interest group. This includes recreational and educational opportunities for sport divers and fishermen, historical values important to archaeologists and historic preservationists, and habitat areas for marine life. In addition, shipwrecks may generate tourism and other forms of commerce and contain valuable cargoes and objects of interest to commercial salvors and treasure-hunters.
States are directed to provide reasonable access by the public, protect natural resources and habitat areas, guarantee recreational exploration of shipwreck sites, and allow appropriate public and private sector recovery when the shipwreck's historical values and surrounding environment are protected. In addition, States are encouraged to create underwater parks to provide additional protection for shipwrecks. States are authorized to use Federal funds from the Historic Preservation Fund grants programme to study, interpret, protect, and preserve historic shipwrecks.
As required under the statute, the National Park Service, US Department of the Interior, prepared guidelines to assist States and Federal agencies in carrying out their responsibilities under the Act. Issued in 1990, the guidelines provide advice on establishing and funding shipwreck management programmes and technical guidance on surveying, identifying, documenting, and evaluating shipwrecks. In addition, they suggest ways to make sites publicly accessible and to recover shipwrecks using public and private entities. They also include advice on establishing volunteer programmes, interpreting shipwreck sites, and creating and operating underwater parks.
The constitutionality of the Abandoned Shipwreck Act has been challenged and affirmed in Federal Admiralty Court. One case involved a shipwreck believed to be Seabird, which sank in Lake Michigan in 1868. This case examined whether Congress exceeded its authority to legislate in admiralty and maritime law when it made the laws of salvage and finds not apply to abandoned shipwrecks covered under the Act. The court ruled that the Constitution was not violated, noting that the law of salvage was unaffected by the Act since it does not apply to abandoned shipwrecks and that, while the law of finds does apply to abandoned shipwrecks, shipwrecks embedded in a State's submerged lands belong to the State under the embeddedness doctrine.
Another case involved a shipwreck from the time of Columbus that lay in the territorial waters of the US Virgin Islands. In this case, the court also upheld the constitutionality of the statute, noting that it does not introduce an element of non-uniformity into admiralty law and does not violate the Due Process Clause of the Fifth Amendment to the Constitution.
The Abandoned Shipwreck Act applies in the fifty States of the United States, the District of Columbia, Puerto Rico, Guam, the US Virgin Islands, American Samoa, and the Northern Mariana Islands. A shipwreck is defined to include the vessel or wreck, its cargo, and other contents. The term embedded means firmly affixed in submerged lands or coralline formations such that tools of excavation are required to move bottom sediments to gain access to the shipwreck, its cargo, and any part.
Further Readings and Links
- Abandoned Shipwreck Act of 1987 (43 U.S..Code 2101-2106, approved 28 April, 1988), statute text.
- Abandoned Shipwreck Act Guidelines
- Preserving a Submerged Legacy
- Aubry, M.C., 1992, 'Federal and State Shipwreck Management in the United States of America', Bulletin of the Australian Institute for Maritime Archaeology, 16, 1, 19-22.
- Croome, A., 1992, 'The United States' Abandoned Shipwreck Act Goes into Action: A Report', International Journal of Nautical Archaeology, 21, 1, 39-53.
- Sunken Treasure, Inc. v. Unidentified, Wrecked, and Abandoned Vessel 857 F. Supp. 1129 (DVI 1994).
- US Department of the Interior National Park Service's Abandoned Shipwreck Act Guidelines, Federal Register 55:50116-50145, 4 December, 1990; Federal Register 55:51528 51529, 14 December, 1990; Federal Register 56:7875, 26 February, 1991, Washington, DC.
- Zych vs. Unidentified, Wrecked and Abandoned Vessel 19 F.3d 1136 (7th Cir. 1994), aff' g 811 F. Supp. 1300 (ND Ill. 1992).