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Contested Waters
Fall/Winter 1996, vol. 1(3/4)

Online Archive

*  Closing the Gaps in Domestic and International Law: Achieving Comprehensive Protection of Submerged Cultural Resources

(photo) Salvors search a ship in 1909.

"To make a discovery is the dream of most [sports divers]. A virgin wreck is a high-class trophy. It is also the first and last chance to record the scene in a pristine state."

John R. Halsey

by Caroline M. Zander and Ole Varmer

Comprehensive legal protection of submerged cultural resources,1 in both the national and international arenas, is essential. If this is not accomplished, the public interest in these non-renewable resources will continue to be threatened by unregulated salvage. The necessity for such wide-ranging legal protection has emerged because of the limitations of the legal preservation tools currently in existence, the application of admiralty/maritime law to most submerged cultural resources, and the continuing advancements made in deep water technology. Currently, there is neither an international treaty nor domestic legislation that provides comprehensive protection, not just for historic shipwrecks and their cargo, but also for the many archeological sites and artifacts submerged with time or lost to the sea.

In both the domestic and international arenas, three main factors determine which, if any, laws can be used to protect these resources: their location, the ownership disposition of or control over the submerged lands in/on which they are located, and the ownership disposition of the resources themselves. These factors significantly restrict our ability to protect submerged cultural resources under the law, and thus many legal gaps exist. In the international arena, the law provides even less protection than it does in the domestic arena. As a result of these legal gaps, submerged cultural resources lying in both national and international waters are vulnerable to unregulated salvage.

One reason for these legal gaps is that, while there appears to be wholesale support for preserving submerged cultural resources, there is a major debate regarding their disposition. The two main interest groups, archeologists and treasure salvors, have taken polar positions on this issue.2 Archeologists have argued that salvage law legitimizes activities that would be considered looting on public lands; salvors have asserted that they are entitled to ownership of and/or salvage rights to submerged cultural resources under admiralty/maritime law. The bottom line is that no one is winning this longstanding battle and, while the debate continues, information about our heritage continues to be lost or destroyed forever.

The Domestic Arena

With underwater technological advances (i.e., the development of scuba gear, metal detectors, remote sensing devices, and deep water submersibles), professional and amateur salvors have become increasingly more able to search for, locate, and recover submerged cultural resources. To protect their discoveries, salvors have turned to admiralty/maritime law and filed admiralty claims in federal courts. Specifically, they have argued that, under the law of finds ("finders-keepers law"), they should be granted title to abandoned historic shipwrecks and their cargo, as title vests in the person who first reduces these artifacts to his or her possession with the intention of becoming the owner thereof. Alternatively, they have asserted that they should be given salvage awards for rescuing these resources from "marine peril" and returning them back to the stream of commerce (the law of salvage). Both of these strategies have proven to be very successful for the salvors.3

Federal and state governments have historically countered the salvors' arguments with their own claims of ownership. The federal government's main defense has been that it has ownership rights to these vessels in waters under its control.4

Both the federal government's and the salvors' positions came before the federal court system in the landmark case, Treasure Salvors v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978), which centered on the ownership of a 17th century Spanish galleon believed to be the Nuestra Seņora de Atocha ("the Atocha"), located beyond state waters on the outer continental shelf of the United States. The United States argued that it was entitled to ownership of the vessel pursuant to several statutes, including the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq. ("OCSLA"), and the Antiquities Act, 16 U.S.C. § 431, et seq. Specifically, the United States argued that OCSLA demonstrated a "congressional intent to extend the jurisdiction and control of the United States to the outer continental shelf."5 The United States continued by arguing that the Antiquities Act, which protects artifacts located on lands owned or controlled by the United States, supported its claim of ownership because the Atocha rested on submerged lands under the "control" of the United States.6 The Fifth Circuit, however, rejected this argument and ruled in favor of Treasure Salvors, a company owned by Melvin Fisher, who is probably the most famous of all treasure salvors.

In its decision, the Fifth Circuit stated that OCSLA only extended federal control over the outer continental shelf for purposes of exploration and exploitation of its natural resources. Therefore, the United States did not, for purposes of the Antiquities Act, have "control" over the submerged lands upon which the Atocha rested. The court further explained that the international treaty underlying OCSLA excludes abandoned historic shipwrecks from its scope. Thus, by enacting OCSLA, the United States had not exercised its sovereign prerogative to claim ownership of the Atocha. The court also pointed out that, while the United States had the authority to exercise its sovereign prerogative to claim ownership of abandoned historic shipwrecks such as the Atocha, it did not do so under the statutes cited by the United States.7

In the domestic arena, the fallout from the Treasure Salvors case has been significant. Most importantly, as discussed later, it appears to give strong support to the argument that admiralty and maritime law controls in all cases except when there is a specific preservation law or permitting regime that can be used to protect submerged cultural resources.

The Abandoned Shipwreck Act

State governments have also asserted ownership claims to submerged cultural resources pursuant to the Submerged Lands Act and state preservation laws. This has resulted in inconsistent and often confusing judicial outcomes. To address these problems and strengthen the protection of certain historic shipwrecks and their cargo, Congress passed the Abandoned Shipwreck Act of 1987 ("ASA"), which became effective on April 28, 1988.8

In passing the ASA, Congress exercised the nation's sovereign prerogative over abandoned wrecks and their cargo within the waters of states and territories. Congress did so by first asserting federal title to these wrecks and then transferring that title to the states and territories in or on whose submerged lands the wrecks are located.9 This transfer of title allows states and territories to manage these submerged cultural resources as part of their duty to manage living and non-living resources in state waters and submerged lands.10

The passage of the ASA was an important congressional step that sought to offer some protection of certain submerged cultural resources. The ASA, however, has significant limitations. First, it applies only to abandoned wrecks within three nautical miles of the shores of American states and territories.11 Second, it does not offer any protection to wrecks that are not abandoned. Third, abandonment has become increasingly more difficult to prove1.2

Two recent challenges illustrate the limited protection afforded by the ASA: Deep Sea Research, Inc. v. The Brother Jonathan, 883 F. Supp. 1343 (N.D. Cal. 1995), aff'd, 89 F.3d 680 (9th Cir. 1996) and Columbus-America Discovery Group v. Atlantic Mut. Ins., 974 F.2d 450 (4th Cir. 1992), cert. denied__, U.S.__, 113 S. Ct. 1625 (1993). In both cases, the courts determined that the wrecks at issue were not abandoned. The court in Deep Sea Research, Inc., held that "a wreck is not abandoned unless either 1) title is affirmatively renounced or 2) abandonment can be inferred from the lapse of time or the failure to pursue salvage efforts on the part of the owners."13

The Columbus-America matter concerned a wreck located outside of state waters. While not involving the ASA, this case is significant in that the Fourth Circuit articulated a strict test to determine abandonment. It held that a finding of abandonment could occur only if an express renunciation of ownership had been made.14

The effect of these decisions is that, for purposes of the ASA, the threshold requirement that a shipwreck be abandoned may be very difficult to prove. Thus the only congressional tool specifically designed to protect historic wrecks has become less effective. If the Abandoned Shipwreck Act cannot protect these submerged cultural resources and they cannot be protected under domestic historic preservation laws, they are most likely vulnerable to unregulated salvage.

Regulating Salvors

In addition to asserting ownership of submerged cultural resources, the federal government has used another approach that has proven successful in each of the three times it has been presented to a federal court. This approach is regulatory in nature and allows for the issuance of permits for research and recovery of certain submerged cultural resources pursuant to statutory and regulatory authority. If issued, these permits regulate salvage activities in a manner consistent with the standards and requirements of the federal archeology program. Additionally, this statutory and regulatory authority provides for the imposition of penalties and for other actions to be taken in the event salvage activities are conducted in violation of a permit or without a permit.

The National Marine Sanctuary Act, 16 U.S.C. §§ 1431, et seq. ("NMSA"), is one of the statutes that has been successfully used to regulate salvage operations.15 Under the NMSA, Congress provided that the Secretary of Commerce shall have the authority to designate and manage "certain areas of the marine environment possess[ing] conservation, recreational, ecological, historical, research, education, or aesthetic qualities which give them special national significance."16 In fact, the very first sanctuary, designated in 1975, was established to protect the Civil-War-era shipwreck, the USS Monitor.17

The success of the United States' regulatory approach in a marine sanctuary is illustrated in Craft v. National Park Service, 34 F.3d 918 (9th Cir. 1994). In Craft, the enforcement provisions of the Channel Islands National Marine Sanctuary were successfully applied. Specifically, an administrative law judge assessed civil penalties against several members of a dive club for removing and damaging submerged historic and cultural resources totaling over $100,000 from the sanctuary. Both the District Court and the Ninth Circuit upheld the imposition of these penalties. The particular significance of this case is that a federal court of appeals upheld agency regulations prohibiting salvage activities within the boundaries of a national marine sanctuary.18

The NMSA is also being used as a preservation tool in the pending consolidated matters of United States v. Melvin A. Fisher, Case No. 92-10027 CIVIL-DAVIS (S.D. Fla., filed April 21, 1992) and Motivation, Inc. v. The Unidentified, Wrecked and Abandoned Vessel, Case No. 95-10051 CIVIL-DAVIS (S.D. Fla., filed August 3, 1995). These cases concern the salvage activities of Melvin Fisher, his son, and others that occurred within the Florida Keys National Marine Sanctuary. In this pending litigation, the United States is taking the position that Fisher and the others failed to obtain a permit that would have properly regulated his salvage activities and, as a result of that failure, sanctuary resources were damaged. Accordingly, the United States is asserting that Fisher and the others violated provisions of the NMSA and the Antiquities Act (discussed later).

As part of the Motivation, Inc., matter, Fisher, as Motivation's president, is asserting that under traditional rules of admiralty/maritime law, his company had a "right" to conduct their salvage activities. Specifically, Fisher's company seeks title to an alleged wreck and its cargo under the law of finds or, alternatively, a salvage award under the law of salvage. The U.S. District Court for the Southern District of Florida has not yet determined which position will prevail; a May 1997 trial of these consolidated matters is currently scheduled.

Another helpful attribute of the NMSA is its ability to protect submerged cultural resources located in waters out to the 200-nautical-mile exclusive economic zone (the "EEZ") of the United States. Specifically, the NMSA expressly provides that it is applicable throughout the 12-nautical-mile territorial sea. However, because the act also states that its application must be "consistent with international law . . . ," it is unclear whether the NMSA can actually be enforceable against foreign flag vessels beyond the contiguous zone (the marine zone extending from 12 out to 24 nautical miles from shore).19 This is because customary international law only provides for the enforcement of a nation's domestic laws against foreign flag vessels out to the contiguous zone, not out to the EEZ. The relevant provisions of international law, however, do not speak to protection of submerged cultural resources against foreign flag vessels out to the EEZ; they state only that submerged cultural resources may be protected against foreign flag vessels out to the contiguous zone.

While the NMSA has proven that it can be successfully applied to protect submerged cultural resources, it is unclear how successful and/or practical it will be as a future tool to provide comprehensive protection of submerged cultural resources located in waters extending from our shores out to the EEZ. First, it requires the creation of a national marine sanctuary by Congress, which involves a lengthy process. Further, once created, the NMSA only protects those submerged cultural resources located within that sanctuary's boundaries. Second, while the act has the furthest reach of any domestic legislation protecting submerged cultural resources, it is not clear how far beyond the U.S. contiguous zone the NMSA can be applied to protect these resources against unregulated salvage by foreign flag vessels.

The Limits of Domestic Historic Preservation Law

Two historic preservation statutes that have been traditionally applied to the terrestrial environment have been successfully applied in the marine environment: the Antiquities Act of 1906, 16 U.S.C. § 431, et seq., and the Archaeological Resources Protection Act, 16 U.S.C. § 470aa, et seq. The Antiquities Act has two main components: (1) a criminal enforcement component, which provides for the prosecution of persons who appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity on lands owned or controlled by the United States; and (2) a component that authorizes, through the issuance of a permit, the examination of ruins, the excavation of archeological sites, and the gathering of objects of antiquity on lands owned or controlled by the United States.20

As discussed earlier, the Antiquities Act was first applied to the marine environment in Treasure Salvors v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978), resulting in a win for the salvors. As set forth in the previous discussion of the Treasure Salvors case, the United States used the Antiquities Act to try to prove ownership of the Atocha. It did not argue that salvage should have been regulated pursuant to an Antiquities Act permit. Therefore, while the Fifth Circuit in Treasure Salvors ruled that the Antiquities Act could not be used in conjunction with OCSLA to establish ownership of submerged cultural resources, it did not speak to the application and reach of the Antiquities Act's permitting component.

The Antiquities Act was applied to the marine environment in only one other case and that case did involve the act's permitting provision. In Lathrop v. The Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953 (M.D. Fla. 1993), the United States successfully argued that Randy Lathrop, who was salvaging an alleged 18th century Spanish galleon without a permit in the Cape Canaveral National Seashore, needed both an Antiquities Act permit and a Rivers and Harbors Act dredge and fill permit. Lathrop took the position that admiralty law exempted him from complying with any act of Congress such as the Antiquities Act or the Rivers and Harbors Act. The United States countered by arguing that several congressional enactments, including both of these acts, were enforceable against Lathrop as the substantive law of admiralty can be modified and/or supplemented.

In essence, the position of the United States in Lathrop was that regulation as to the manner of salvage does not interfere with the underlying principles of admiralty/maritime law. The court agreed: "[c]ongressional enactments restricting the manner in which a potential salvor excavates property located on federally owned or managed lands does not offend these sound constitutional limitations [admiralty and maritime law jurisdiction]."21 This is analogous to the government's treatment of car ownership; a person has the right to own a car, but the government maintains the right to regulate how that vehicle is to be operated.

It is clear that, where the United States has ownership or control of the submerged lands in or on which submerged cultural resources are located, the Antiquities Act permitting provision can effectively be used to regulate salvage. Confusion remains, however, over what is meant by the term "control." This confusion derives from the Treasure Salvors case where the Fifth Circuit denied that the Antiquities Act was a basis for claiming ownership to the Atocha. However, it remains unclear whether the Fifth Circuit also meant that the United States must have "control" over the submerged lands for the specific purpose of protecting submerged cultural resources in order for the act's permitting provision to apply. The interpretation of the term "control" was not an issue raised in the Lathrop case. Even if it had been, the United States would still have prevailed because the National Park Service has exclusive management authority or control over submerged cultural resources and other resources located within the Cape Canaveral National Seashore.

Clearly, the permitting component of the Antiquities Act can be a very effective regulatory tool. However, after reviewing holdings in both the Treasure Salvors and Lathrop cases, it appears that its reach may be limited to regulating salvage only in marine protected areas in which the United States has the authority to protect submerged cultural resources.22 If the term "control" indeed is interpreted this way, then most submerged cultural resources will be vulnerable to unregulated salvage.

The Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa, et seq. ("ARPA") is another historic preservation statute that has been successfully applied to the marine environment. ARPA was specifically designed to prevent looting and destruction of archeological resources. Like the Antiquities Act, ARPA has both an enforcement and a permitting component. The enforcement provision provides for the imposition of both criminal and civil penalties against violators of the act. ARPA's permitting component allows for the recovery of certain artifacts consistent with the standards and requirements of the federal archeology program. It is the criminal enforcement provision of ARPA that was successfully used in United States v. Hampton, CRIM. DOC. Nos. P169925, P169927, and P169928 (United States District Court for the Southern District of Florida, July 18, 1986). In the Hampton case, a salvor was prosecuted for salvaging submerged cultural resources in Florida's Key Biscayne National Park. The case resulted in a plea bargain.

While ARPA appears to be a promising protection tool, it too is very limited in its application to the marine environment. Pursuant to the express language of the act itself, ARPA can only be applied to such areas as national parks and wildlife refuges. Additionally, ARPA specifically states that it does not apply to activities occurring on the outer continental shelf. Thus, ARPA's limited reach in the marine environment leaves many submerged cultural resources open to unregulated salvage.

There are other, more traditional environmental laws such as the National Environmental Policy Act, 42 U.S.C. §§ 4321-347 ("NEPA"), and the National Historic Preservation Act, 16 U.S.C. §§ 470e, et seq. ("NHPA"), which also offer some protection against unregulated salvage.23 While these are not result-oriented statutes, they do require federal agencies to give consideration to the impacts of their activities on cultural resources. Accordingly, submerged cultural resources can be protected under these statutes, but only to the extent that the relevant federal agency involved must consider the activity's impacts on submerged cultural resources. So long as those impacts are considered, the agency has met its obligations under the law and need go no further. Therefore, these statutes may not offer comprehensive protection of submerged cultural resources.

It is clear that, after reviewing the effectiveness and reach of the major domestic historic preservation laws as applied to submerged cultural resources, more legislative protection is needed. While salvage can be successfully regulated in limited circumstances, many gaps in the law exist that leave most submerged cultural resources vulnerable to unregulated salvage activities. It is the view of the authors that the most successful approach for achieving comprehensive protection of submerged cultural resources is a regulatory one. A multiple-use permitting process, as described later, would ensure both the protection of submerged cultural resources and provide for salvage activities to be conducted in a manner consistent with the standards and requirements of the federal archeology program. Such an approach would protect the public interest in these important resources. Additionally, it would consider the interests of both archeologists and salvors, thus putting an end to the stalemate between the two groups and, more importantly, preventing the sacrifice of submerged cultural resources in the process.

The International Front

Legal protection of submerged cultural resources under international law is even more limited than it is under national law. As a result, a tremendous number of historic wrecks remain open to salvage without any regulation whatsoever. One example of this is the Titanic. If a treaty regulating salvage had been in place, last summer's destructive attempt to raise part of the Titanic's hull might never have happened.

There are two sources of international law: customary international practice and international agreements. The former has been defined as the custom or conduct of nations that has been generally accepted by the international community. The generally accepted practice of nations is, therefore, evidence of customary international law. Agreements such as treaties and conventions are the other primary source of international law, albeit this source is a formal and express one.

While there are a few international conventions that are applicable to submerged cultural resources,24 no treaty offering comprehensive protection of submerged cultural resources exists. The need for such a treaty is apparent. In the meantime, salvors will continue to use admiralty and maritime law to the extent that coastal nations allow it under their domestic law.

The Law of the Sea

The Law of the Sea Convention (the "LOS"),25 which became effective in 1994,26 is the comprehensive international treaty for coastal state regulation of all uses and areas of the sea, including the air space above and the seabed below (coastal nations are referred to as "states" for purposes of this discussion).27 It provides the legal framework for determining the authority, rights, and responsibilities regarding activities in the marine environment.

Certain provisions of the LOS may be relevant to the protection and management of submerged cultural resources. These include: 1) the jurisdiction and authority of nations in different marine areas; 2) the limits on coastal state jurisdiction; 3) the rights of passage and access; and 4) the obligations and duties of coastal states to protect and preserve submerged cultural resources and other resources in the marine environment.

The LOS does not in and of itself protect, preserve, or dispose of submerged cultural resources; it does, however, impose a duty on coastal states to do so. The LOS provides the authority for coastal states to apply their domestic preservation laws in certain areas, namely each coastal state's territorial sea (extending from shore out to 12 nautical miles) and contiguous zone (extending from 12 out to 24 nautical miles from shore) as well as the "Area," or the seabed in the international commons (located outside of both the outer continental shelf and the 200-nautical-mile EEZ of each coastal state).

The LOS also sets forth how and where domestic preservation laws can apply to foreign citizens and foreign flag vessels. Additionally, it provides for the application and development of international treaties on submerged cultural resources.

Article 149 (addressing the Area) and Article 303 (addressing the sea) incorporate some coastal state duties and responsibilities for protecting submerged cultural resources. The scope of these duties, however, is not clear. In addition, there appears to be a gap in the LOS in that it fails to address the duties and responsibilities of coastal states pertaining to the protection of submerged cultural resources in a situation where the resources are located on a coastal state's outer continental shelf, which goes beyond the contiguous zone and continues to the outer portion of the EEZ.

Article 149 expressly imposes a duty on coastal states to preserve or dispose of submerged cultural resources, and sets forth preferential rights to consider in carrying that duty out. The article's language, however, does not specify the standards of that duty nor does it explain how that duty is to be executed. Further, it does not define the terms contained in the language of Article 149 such as "preferential rights of the State or country of origin," "State of cultural origin" or "State of historical and archaeological origin." The article also fails to delineate any ranking among those preferential rights cited in the provision.

In short, Article 149 attempts to address the global interest in protecting submerged cultural resources, but in so doing, it perhaps raises more questions than it answers. For this article to be effectively implemented, the ambiguities need to be clarified.

Article 303 of the LOS provides for protection of submerged cultural resources, however, the reach and definition of this protection is unclear. Specifically, Article 303(1) imposes a duty on states to protect archeological objects "found at sea" and does not define which of the various LOS marine zones are included in the term "seas" (i.e., the territorial sea, contiguous zone, the EEZ, and/or the high seas). Therefore, the duty imposed on states to protect submerged cultural resources is not clear. Some guidance can be inferred from Article 303(2)'s express reference to a state's ability to control trafficking of submerged cultural resources located within the contiguous zone. As a result, most experts agree that the duty to protect submerged cultural resources extends beyond the territorial sea and, at a minimum, includes the contiguous zone.

The largest problem with Article 303(1) and (2), however, is that it fails to set forth a definition of what is meant by protection. It simply states that states have a duty to protect, leaving it to the states themselves to determine what that duty is and how to implement it. Thus, the states are saddled with an undefined responsibility, along with a duty to ensure that they do not affect the rights of identifiable owners, the law of salvage, or other rules of admiralty.28 That is a rather tall order for the states to fill, especially when the LOS offers no guidance. For example, while a state's domestic implementation of the article could be enforced against domestic flag vessels out to the outer extremes of the EEZ, such enforcement would be limited against foreign flag vessels only out to the territorial sea and the contiguous zone.

Article 303(3) expressly states that there is no intent for the rights of owners or admiralty law, including the law of salvage, to be affected. Thus, if a state allows unregulated salvage under admiralty law, there is no violation of the LOS. It is equally true, however, that a state could enact laws that prohibit the unauthorized removal and recovery of submerged cultural resources in both the territorial sea and contiguous zone. Accordingly, the lack of clarity in the LOS may result in many inconsistencies concerning the protection of these resources among the coastal states.

Experts on the LOS agree that in reading Articles 149 and 303 together, there appears to be a gap in the protection afforded to submerged cultural resources. Unaddressed are a state's duties and responsibilities outside its contiguous zone out to the outer portions of its EEZ. UNESCO has been considering a draft convention to address this gap and to establish recovery standards. The draft UNESCO Convention would prohibit private recovery of submerged cultural resources and, as a result, has been opposed by the U.S. Department of State and its counterpart in the United Kingdom. Both of these agencies have suggested that, rather than use the existing draft, UNESCO should consider using the draft European Union Convention as a model for addressing the protection of submerged cultural resources because it does authorize private recovery of these non-renewable resources. The draft UNESCO Convention, however, remains in draft form and is not expected to be finalized in the near future.

After reviewing the limited protection of submerged cultural resources offered by the LOS, it is evident that, at a minimum, a treaty concerning submerged cultural resources is needed to clarify the duties, responsibilities, and standards for protecting these resources in waters outside the contiguous zone out to and including the LOS Area. To maximize the support of nations, the authors suggest that such a treaty be drafted that protects submerged cultural resources through a multiple-use permitting system that relies on flag state jurisdiction. Each nation, including the United States, would then pass new or apply existing domestic laws to implement the treaty and manage these important resources within its jurisdiction. Such a system would allow for a case-by-case determination of whether certain submerged cultural resources should remain in place or be recovered. If recovery is deemed appropriate, it would have to be consistent with approved archeological standards and requirements, as discussed below.

Recommendation for Comprehensive Protection of Submerged Cultural Resources

Based on the relative success the United States has enjoyed using a regulatory approach to protect submerged cultural resources, the authors propose that such an approach be extended to protect these resources in all waters, both domestic and international.29 A multiple-use permitting system would address the interests of many, including salvors, divers, historians, and archeologists, while ensuring that the information derived from submerged cultural resources would be available to the public.

The proposed system would provide a framework for a case-by-case determination as to which submerged cultural resources should be preserved in place for present and future generations and which submerged cultural resources should be recovered. In either case, however, such a determination would be based on the public interest. If recovery best serves the public interest, a second case-by-case determination would be made as to what role salvors should play. A key element of the system is that, in all cases, the research and recovery of submerged cultural resources would be consistent with approved archeological standards and requirements such as those set forth under the federal archeology program and/or the international standards as specified in the International Council on Monuments and Sites (ICOMOS Charter for the Protection and Management of the Underwater Cultural Heritage)

A multiple-use permitting system such as the one proposed here offers perhaps the greatest hope of achieving comprehensive protection of submerged cultural resources in all waters. If things remain unchanged, unregulated salvage will continue to jeopardize the public's ability to protect its interest in submerged cultural resources. It is clear that, given the complexity of this area of the law and the failure of the existing legal tools to provide anything more than limited protection, a creative solution for accomplishing comprehensive protection must be found.

The authors offer this broad outline of a regulatory system as a first step toward achieving a balance between the needs of both archeologists and salvors while ensuring that the public interest is best served. The next step, which is already underway, is to flesh out the details of the system, including the development of criteria to be used to govern the issuance of permits.

Conclusion

Submerged cultural resources are vulnerable, both nationally and internationally, to unregulated salvage. Protecting these resources in a piecemeal fashion has not and simply will not work. What is needed are domestic and international initiatives that complement each other. Domestic legislation must be enacted or amended to comprehensively protect submerged cultural resources in the waters of the territorial sea and contiguous zone. This is not only essential, but is also consistent with current international law. At the international level, a treaty is needed to, at a minimum, protect submerged cultural resources outside nations' contiguous zones out to and including the LOS Area. Perhaps a multiple-use permitting system such as that proposed here will serve not only the interests of archeologists and salvors, but the interests of all people in their shared cultural heritage as well.

For more information, contact Caroline M. Zander, Trial Attorney, U.S. Department of Justice, Environmental and Natural Resources Division, General Litigation Section, P.O. Box 663, Washington, D.C. 20044-0663, (202) 305-0248, fax (202) 305-0274, e-mail caroline.zander@usdoj.gov, or Ole Varmer, Attorney-Advisor, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Suite 6121, Silver Spring, MD 20910, (301) 713-2969, fax (301) 713-4408, e-mail "Attorney-Advisor"- ovarmer@rdc.noaa.gov.

The views expressed here are those of the authors and do not necessarily reflect the opinion or endorsement of the U.S. Department of Justice or the National Oceanic and Atmospheric Administration.

Notes

1. The term "submerged cultural resources" refers but is not limited to: historic shipwrecks and their cargo, archeological and cultural resources whether resting upon or embedded in submerged lands and regardless of the ownership disposition of the artifact.

2. The terms "treasure salvors" and "salvors" as used throughout this article refer to both professional and amateur salvors who attempt and/or actually remove submerged cultural resources for purposes of monetary gain and/or private possession. Additionally, the term "salvage" as used in this article, refers to the removal or attempted removal of submerged cultural resources.

3. Such salvage awards for services rendered often amount to the value of the entire vessel and its cargo. See Treasure Salvors v. The Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330, 336-37 (5th Cir. 1978). See also Columbus-America Discovery Group. Inc. v. Atlantic Mut. Ins. Co., 974 F.2d 450 (4th Cir. 1992), cert. denied, __ U.S. __, 113 S. Ct. 1625 (1993), where the court awarded a salvage award amounting to 90 percent of the recovery.

4. See, e.g., id. at 337.

5. Treasure Salvors, 569 F.2d at 338.

6. Id.

7. It is questionable whether the outcome of Treasure Salvors would have been the same if the matter were heard today. The reason for this is that Presidential Proclamation 5928 (Dec. 27, 1988) extended the United States' territorial sea out to 12 miles from shore consistent with international law. Accordingly, it is arguable that the United States has now exercised its sovereign prerogative over submerged cultural resources out to 12 miles offshore. Thus, although never before attempted in federal court, the United States could take the position that it now has "control" over the submerged lands for purposes of applying the Antiquities Act.

8. The Abandoned Shipwreck Act of 1987, P.L. No. 100-298, 43 U.S.C. §§ 2101-106 (1988).

9. Id. The ASA, however, does not apply to abandoned shipwrecks located in or on federal public lands and abandoned shipwrecks located in or on Indian lands. 43 U.S.C. §§ 2101, 2105.

10. Id.

11. In the Gulf of Mexico, the ASA applies to abandoned shipwrecks located in waters that are up to nine nautical miles from shore.

12. See, e.g., Deep See Research, Inc. v. The Brother Jonathan, 89 F.3d 680 (9th Cir. 1996).

13. Deep Sea Research, Inc., 89 F.3d at 688.

14. See Columbus-America Discovery Group, 974 F.2d at 472 (Widener, J., dissenting).

15. The NMSA is Title III of the Marine Protection, Research and Sanctuaries Act of 1972, 16 U.S.C. §§ 1431, et seq.

16. 16 U.S.C. §1431(a)(2) [emphasis added].

17. The USS Monitor was lost when it sank off the coast of North Carolina on December 31, 1862. When it was found in 1973, there was excitement about the discovery and concern about its potential destruction due to looting or salvage. In order to protect and preserve the USS Monitor, two avenues were pursued: 1) designating it as a National Historic Landmark under the National Historic Preservation Act, 16 U.S.C. § 470a and the regulations promulgated thereunder; and 2) designating it as a National Marine Sanctuary. As a result, the USS Monitor became the first national marine sanctuary.

18. Also worth noting is that the District Court rejected the divers' argument that they were entitled to conduct their activities because they had a preexisting admiralty/maritime right of access, which, under the NMSA, would allow them to remove submerged cultural resources. Although this argument was not raised on appeal, the Ninth Circuit did acknowledge the district court's rejection of it.

19. The NMSA can be applied to "those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands over which the United States exercises jurisdiction, including the exclusive economic zone consistent with international law . . ." 16 U.S.C. §1432(3).

20. It should be noted that the Antiquities Act was under a constitutional attack in two cases. In United States v. Diaz, 499 F.2d 113 (9th Cir. 1974), the Ninth Circuit held that the Antiquities Act was unconstitutionally vague and therefore a violation of due process. Specifically, the court found that the definitions of "ruin," "monument," or "object" could also include objects made recently and, as a result, provided insufficient notice to the public of the applicability of the act's penalty provisions.

In United States v. Smyer, 596 F.2d 939 (10th Cir. 1979), the Tenth Circuit upheld the constitutionality of the Antiquities Act. The court distinguished the Smyer case from the Diaz case: the Diaz case involved face masks made in 1969 or 1970 as opposed to the objects appropriated in the Smyer case, which involved artifacts that were 800 to 900 years old and were taken from ancient sites for commercial purposes. Id. The court found that, as it applied to the case before it, the act suffered "no constitutional infirmity" and must be considered "in the light of the conduct with which the defendant is charged." Id.

21. Lathrop, 817 F. Supp. at 962 [emphasis in original].

22. It should be noted that, in the pending consolidated cases of United States v. Fisher and Motivation, Inc., the United States is also taking the position that the salvors' activities were conducted in violation of the Antiquities Act. Specifically, the United States is asserting that the salvors did not first obtain an Antiquities Act permit prior to commencing their salvage activities.

23. Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, can also provide protection of submerged cultural resources. The Army Corps of Engineers is responsible for regulating dredge and fill activities through a permitting system. Salvage activities often involve dredging and filling of the seabed. Therefore, if salvors dredge or fill, regulation of their salvage activities can be accomplished and have a protective effect on submerged cultural resources. A case in which the application of the Rivers and Harbors Act permitting process successfully regulated salvage activities is the Lathrop case. There, the court found that regulation of Randy Lathrop's salvage activities were proper and did not interfere with admiralty and maritime law.

24. See United Nations Convention on the Law of the Sea, the World Heritage Convention, and the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

25. While the Law of the Sea has yet to be ratified by the U.S. Senate, it has been signed by the Executive Branch and has generally been described as a codification of the customary international law of the sea. Thus, even if not ratified, much of the LOS would be considered to be reflective of customary international law.

26. The United Nations Convention on the Law of the Sea was entered into at Montego Bay in 1982 and became effective on November 16, 1994.

27. The term "state" or "State" for purposes of the Law of the Sea Treaty refers to sovereign nations and should not be interpreted to mean a state or states within the United States.

28. See LOS Article 303(3).

29. The authors acknowledge that submerged sovereign vessels should be exempt from any proposed system. Such vessels should remain the property of the particular sovereign under whose flag those vessels sailed, regardless of where they currently rest.

MJB/EJL