Video
One Ship, Two Ships, Our Ship, Whose Ship
Transcript
Karen: Good afternoon, everyone and welcome to the NPS archeology program speaker series for 2015-2016. My name is Karen Mudar and I'm an archeologist in the Washington Archeology Program Office. This is the third webcast in our series examining maritime archeology and I'm very pleased to welcome NPS underwater archeologist Dave Conlin today. I don't want to take up his time but I have a few announcements that I need to make. First of all, I have information about Arrows and Atl Atls by Jim Dixon, our first speaker in this season. You can download a copy of the book by going to the Alaska Region Website and I've included the URL on the screen here. I'll also send it out with the next announcement. You can also Google the title and get a pdf there as well. If you want a hard copy, contact Jennifer Pederson-Weinberger and she'll send the first 100 people who respond a free copy.
For obvious reasons we won't have a webcast next week. If you're travelling over the Thanksgiving holiday, please be safe. We need you! In 2 weeks, on December 3rd Stephen Lubkemann of George Washington University will join us. Steve is the founder of the African Slave Wrecks Project which has been investigating the slave ship Sao Jose Paquete sank off Cape Town on its way from Mozambique to Brazil in 1794 while carrying more than 500 slaves. The ship's crew and almost half of the slaves drowned and the surviving slaves were resold. An international team of archeologists and historians are investigating the wreck which is located in shallow water just offshore. They find shackles, iron ballast to weigh down the ship which was carrying fairly light human cargo and wooden pulleys. Their findings and interpretations have been much in the news recently. I would imagine that almost everybody is familiar with this project and we're very pleased to have Stephen give us a firsthand account.
Last week, Chuck Meide gave us an update on research to locate four 16th century French galleons. In 2014, Chuck went on an expedition to search for the lost French fleet of Jean Ribault wrecked in 1565, and his team utilized all the historical information that they had at their disposal to target an area in Cape Canaveral that they thought might contain the ship wrecks. The project is carried out in partnership with the National Park Service, the state of Florida, NOAA, the Institute of Maritime Archeology and the Center for Historical Archeology. It was really a good talk. It utilized a lot of historical images and he gave, I thought, very nice and lucid explanations of the technology that were used for this to salvage the ship. I'm sad to report, however, that I was unable to record this very good presentation. This means, of course, that we'll have to invite Chuck back for an encore when he and his team actually locate one of Jean Ribault's vessels. Over the course of 4 years and over 50 webinars my technology is only failed me twice, last week and during the first year of the webinar.
James: Hey. Thank you. This is James Luray. I'm calling from DC with NPS Cultural Resources [crosstalk 00:04:07] between the patients and the WWII subject site that we just put up. We have a question for you guys.
Karen: I'm going to start this over. Over the course of 4 years and 50 webinars my technology has only failed me twice, last week and during the first year that we offered the webinars. Because it was such a stellar presentation I've asked Dave Conlin to give it again so that the Park Service will have a recording of it. My speaker today is Dave Conlin who is the chief of the NPS Submerged Resources Center. He leads a team that provides technical expertise to parks and partners the location, protection and interpretation of submerged cultural resources. Cultural research managers and archeologists have been grappling for decades with the patchwork of laws and policies that apply to these sites and have been trying to determine which ones to apply to fulfill legal requirements and to meet the NPS mission to preserve these resources unimpaired for future generations. This continues to be a very important challenge for us. Dave's wide range of experience makes him an excellent choice to speak to us today about recent legal developments. Dave, thank you for being with us today.
Dave: All right. Thank you for the introduction, Karen. I'll give a little plug here for the Sao Jose webinar on December 3rd. That's a project that's the National Park Service has been heavily involved with since the get go and I'm very pleased to say that David Morgan the director at SEAC represented the park service during recent celebration events in South Africa to roll out the discovery of the Sao Jose and also the International loan of materials that are coming from South Africa to the new Smithsonian Museum. He graciously agreed to travel to South Africa and represent us. It was a tough job but somebody had to do it, so our thanks to him and please, if you can make it, do come to the webinar on December 3rd because I think it's going to be excellent.
Karen: Thanks for that, Dave. You can do it [change the Power Point] because I don't know which one you want to choose.
Dave: I don't know either. All right. I'm going to just kind of go through this. I don't have any formal presentation written out. My presentations can be hit or miss and if you're not getting what you want to out of this webinar, please interrupt me, ask some questions, bring up some relevant cases from your parks or programs and we'll kind of use this talk as a basis for conversation. I'll start by giving a shameless plug for my next webinar which is the one that I really, really, really wanted to give. For the past 2 years we've been, we, (myself and Brett Seymor here at the Submerged Resources Center), have been working after hours, off time on a project in Greece on the Antikythera shipwreck which is probably one of the most famous shipwreck in the world. It was one of the first ever underwater archeology projects ever done in 1900.
It was a Roman ship carrying a load of Greek statues and priceless antiquities including the very one on famous Antikythera mechanism which is the world's first mechanical computer. I really wanted to give this talk but Karen thought that you would much rather hear about laws and policies as they relate to submerged culture resources.
Karen: Silly me!
Assuming this one gets recorded as we hope this will be on file for you all to refer to but then the next webinar will be about the fabulous shipwreck that we're working on in Greece. I'm going to start, because I'm a federal archeologist, with a disclaimer, which is that I'm an archeologist by training and I'm going to be discussing policies related to cultural resources but nothing in my presentation should be taken to represent legal advice nor is it intended to replace the services of our solicitors.
However, there will be prizes at the end of this, so if you stay awake I can't give you a time off award but by the time we get to the end of this talk there will be a couple of questions and whoever answers first and correctly will get a fabulous prize of Submerged Resources Center swag that will be the envy of your archeological colleagues. Pay attention and jump in if something is not clear, ask some more questions then you'll be poised to leap on that swag at the end of my presentation. Let's just look at the National Park Service. One of the interesting things that we face here at the Submerged Resources Center is we get sort of 2 questions. 1 is, why are underwater archeologists in Lakewood, Colorado? The other is, I didn't even know that the National Park Service had submerged lands. The answer to the first question is, it is the result of history of the Submerged Resource Center's involvement in the national reservoir inundation study. The 2nd is that we have a tremendous number of aquatic and coastal parks. Roughly, 146 of 407 NPS units contain significant water resources. That’s in 38 states and territories, 74 of 146 ocean parks that are both ocean and great lakes.
We have about 8,000 kilometers of ocean coastline. My tag line is that’s more coastline than the country of Brazil. We have about 20,000 km2 of area that’s sea plus lake. That’s roughly the size of the state of New Jersey. In the 40 ocean parks that are explicitly designated as ocean parks, it’s 13,000 km2. 64,000 km2 wetlands, 200,000 km of waterway, 121,000 km of river, 2,000 springs, 1600 km of canal, 7.5 million visitors annually to our aquatic and coastal parks, that’s actually old information. It’s probably more than that now. That’s about $2.5billion in economic benefits to our local communities. The national parks have a huge, huge stake in submerged lands and part of that stake involves cultural resources. It’s a complicated picture because when you look at the status of NPS bottom land throughout the entire system, only about 73% of those bottom lands is owned by the US government.
Some of it is state acreage that is not dedicated to the United States government, some of it is state-owned and some of it is unknown. ¼ of the acreage is not owned by the US government. When you look at the actual jurisdictional powers of those bottom lands, we’ve got only 16% of the NPS bottom lands as exclusive jurisdiction of the National Park Service. That causes a huge amount of problems for our superintendents, for our resource managers, for you guys as archeologists. We have situations where we are legally obliged to allow activities directed at submerged archeological sites that we would otherwise not allow in any other situation. We have situations like Gulf Islands National Seashore in Florida where there’s a patchwork of jurisdictional statuses within a single park. There are parts of that park that belong to the National Park Service exclusively; there are parts of that park that belong to the state of Florida; there are parts of that park that belong to the state of Mississippi; and there’s lots of that park that nobody really knows.
Every couple of years what happens is some young policy wonk decides that they want to get to the bottom of this and they dig into the issue of who actually owns the bottom lands of Gulf Islands National Seashore. After about 4 or 5 months of banging their heads against the wall, they come up on the edge of the abyss and say, “I don’t know what’s going on and we’d better just agree not to examine the question because nobody has any idea and it’s going to be a huge fight about state rights, about Federal vs State jurisdiction, all those sort of things.” Typically, we can agree not to address those questions but there are situations that come up that really make us try to figure out who owns the bottom-land and what particular laws or policies apply.
1 of the situations that came up at Gulf Islands was the Mississippi 252 Gulf oil spill, where all sorts of oil was coming up was being deposited on the bottom land was injuring resources. The question was, who was actually being injured? Was it the National Park Service, was it the state of Florida, was it the state of Mississippi because who got the money from BP? Again, it was a huge mess and continues to be a huge mess. The other situation and 1 that we will face is what happens when a significant cultural resource is located on park bottom-lands and the jurisdictional status is not known? That’s what we are going to talk about today.
We have situations, historically, where we have dealt with these issues, specifically at Assateague, where the Spanish wrecks of Juno and La Galga were found and then the state of Virginia issued a treasure hunting salvage permit to people and the whole thing ended up going to court. It was a colossal battle and I’m pleased to say that preservation won. It was just 1 of multiple instances where we’ve had these sort of competing jurisdictions and everyone is wondering what’s going on in various parks and places.
Let’s talk a little bit about underwater cultural resources. Underwater cultural resources are often better preserved than comparable land resources. Underwater cultural resources offer different perspectives and additional information that are not present in historical documents. Much of the maritime activities are undocumented because by and large sailors over time were not literate. They were, rather, they weren’t uneducated, but they were not formally educated for reading and writing. The people who could read and write were oftentimes ship owners, ship captains, and so the history of the everyday people who sailed on sailing ships is present in the archeology, not in the historical documents. Underwater cultural resources represent very large social processes like human migration, adaptation, trade networks both within a region and across oceans, between continents, between countries.
Over time we have that in the case of the Sao Jose and the slave wrecks project that the National Park Service is a part of where we are looking at ship wrecks in multiple places on both sides of the Atlantic and into the India Ocean that relate to the shameful processes involved in the global slave trade. I talked about culture contact and colonization. Obviously these are the wrecks that we celebrate as a nation, the Columbus wrecks that were searched for down in Jamaica, early Spanish shipwrecks both in Texas and off of the California coast, shipwrecks in the Great Lakes,
And, as I said, earlier, it can show poorly documented people and non-elites that are not well represented in the historical documents. Also, maritime archeology brings to the fore things that we don’t talk about, that weren’t talked about at the time either because they were immoral or because they were illegal or because they were both, piracy, trafficking in enslaved peoples, smuggling, all of those sorts of things can be represented in the archeological records. In short, it provides knowledge about activities that’s not obtainable elsewhere. For us in the Park Service, the big take-home message is they belong to all of us. It’s our job as NPS archeologists to preserve, protect, and interpret those resources for everyone that comes to visit our parks.
There’s a whole bunch of different submerged resources. Some of them, you are familiar with, some of them you are not, inundated terrestrial sites, we’ve got sites in parks that are there due to sea level change, all sorts of reservoir construction, a lot of activity areas, anchorages, landings, places where they would off load ballast to work on ships, fishing, wreck sites, salvage sites, sites where ships were repaired, sites where bottoms were scraped and also purpose-built structures, docks, piers, landings, all of those sorts of things. Then we’ve got deposition sites which are places where people dump stuff just off of docks, off of shores, next to ports, and just random sites.
We also have a really interesting archeological phenomenon that I’ve seen which I call the Doughnut Midden, which is a site where ships were anchored for long periods of time, like in Bermuda where ships were basically hulked and used as prisons, swing around in a circle on their moorings and as stuff gets dumped over the side, what you get is you get a doughnut-shaped depositional pattern of stuff that gets thrown off these wrecks as they move back and forth due to the tides and winds. Obviously we’ve got things that are maritime casualty sites and they span the spectrum from complete wrecks like we see up at Isle Royale National Park to random groundings that may leave transient indications, if any, of strandings; beach shipwreck sites; partial shipwrecks; full hulls, fragments, individual artifacts; elements of ship tackle such as anchors; and then also the associated survivor camps like Chuck Meade talked about last week in his talk. I don’t know if it was Karen, I don’t think it was but someone called me from Washington DC once and asked me, “How many unknown shipwrecks are in the National Park Service?” I just laughed and I said, “Is this a trick question? This is a Donald Rumsfeld question, right? Unknown knowns or known unknowns or something like that.”
The answer is, we have no idea how many unknown shipwrecks are in the National Park Service, but we have several hundred shipwrecks in the ASMIS data base and for just as a kind of indication, for a site like Dry Tortugas National Park here under the red arrow, and you can see these black bands represent paths of maritime commerce from 1500 to about 1699. Everything went past Dry Tortugas National Park. If you look at a map of the Tortugas and then the red represents the current park boundary, each one of those orange crosses represents either a shipwreck or an archeological/historical resource that we and our colleagues at SEAC working with the park have discovered over the years and helped document. Just in a single park like Dry Tortugas there literally hundreds of attested ship wrecks. There 42 shipwrecks listed in ASMIS not to mention hundreds of elements of ships’ anchors, of ephemeral pieces, of shipwrecks and that’s just one of 147 parks. We have similar patterning at Channel Islands National Park, we have similar patterning at Isle Royale National Park, at Biscayne National Park, we have stuff underwater all over the place.
The answer to your question that’s jumping up in your mind right now is, ”Wow! Does that mean that we can go out and come diving, do some underwater archeology?” The answers is, “ Absolutely, yes, and we’re here to help with that and we would be more than pleased if you guys, hung up your trowels and joined us and did some underwater archeology in parks near you because we’ve got a lot of work to do. We would be happy and welcome the help. What are the threats to the resource? In the National Park Service we really see two things, we’ve got the incidental destruction of resources caused by construction and that’s often on us, the idea is that the compliance work that we do will prevent that from happening or at least mitigate the effects of that. Then we have the unauthorized salvager picking over our sites and, obviously, this is Key West’s favorite local celebrity, Mel Fisher, who came from California, was a chicken farmer, discovered the world of treasure hunting, and made his name for himself treasure hunting.
To be fair, most of the threats we see to the sites in our national parks are not the large scale, well organized industrial treasure hunting that Mel Fisher and his family developed but rather the casual looting and picking over of sites. However, at Biscayne National Park and other places there is a strong local culture with messing with our cultural resources that goes beyond just casual divers picking stuff up, to more organized focused attemptsto excavate and remove materials from our national parks. Why is this a problem? Well, when you look at this slide, what you can see is that on the right we’ve got site materials that are found in wet underwater contexts versus on the left in blue, which is dry contexts and you can see that preservation is typically much better in underwater sites than you have on dry land sites. That goes throughout a wide range of materials used for the construction of artifacts and it goes even beyond this as well. You can look through to see things like skin for example when we recovered HL Hunley, the Confederate submarine off the Charleston, South Carolina, in 2000, when they actually opened up the submarine and excavated the interior sediments they found the eight crew members were there and inside their leather shoes were actually still human feet. That’s an indication of what we’ve got.
Here this is two cases, one on the left here this is Sunny Cockrell who was the underwater archeologist, state underwater archeologist, in the state of Florida and he is holding a human skull from about 10,000 BP from a site known as Warm Mineral Springs in Florida and then you can see on the lower right, this is actually brain matter that was removed from that skull 10,000 years old. Then up in the top right hand corner you can see, just to the right of the burr is, I think that’s a projector point, but what we’re seeing is that advances in technology have made all these sites much more accessible. What used to cost millions of dollars or remotely operated vehicle robot submarine that only a few could buy or own, you can now buy for under $10,000. Re-breathers, mixed gas diving advances and how we dive and the equipment we use to dive have made dives that used to be unimaginable to 2-3- or 400 feet. They’re weekend warriors who go out and make those dives on a regular basis, that’s nothing to them at all. So, the remoteness, the technology used to find this sites, the technology used to access this sites, is getting better and cheaper.
There’s really no underwater site on this planet that can’t be found given enough time and given enough money, and we’re seeing that in our parks as well. The dangers resulting from treasure hunting and unauthorized salvage are not only to the single sites that treasure hunters and people are looking for that are financially valuable, but in the process of looking, they typically damage dozens and dozens if not hundreds of other sites as well. This is a prop wash deflector, this is fairly common, in common use in the south Florida area, and what that does is, on the top picture, when those L-shaped things are dropped off the back of a boat, they deflect prop wash downward, then you can see that in action in the lower picture and that just basically blows a huge hole in the bottom. To give you sort of a terrestrial analogy, what’s that like is walking along to a terrestrial site, digging a little auger hole, sticking a stick of dynamite in there and blowing it up, then going over, looking in the holes to see what’s down there based on a metal detector hit or a magnetometer reading.
You have no real idea, based on the remote sensing or anything else, to what’s down there and you blow it up like this, that’s what destroys the archeological contest, it removes the protective overburden on the site, exposes these sites to increased damage and decay. In addition to that, disturbing archeological sites, often releases hazard materials like petrochemicals, sometimes unexploded ordinance on military wrecks and obviously damage to the marine environment which is a concern for us in the National Park Service, as archeologists and people involved and preservationists, its loss of our shared history. You guys should all know this, it should be tattooed on the inside of your eyelids but this is our mandate.
This is what we’re here to do, we’re here to preserve the natural and historic objects unimpaired for the enjoyment of future generations. That notion of unimpairedness coupled with this sort of patch work jurisdictional statuses that we have underwater really put us in a bind, sometimes. This is our management policy for archeological resources. Again, you guys should know all this, archeological resources managed in situ unless the artifacts are threatened by physical, unless the artifacts are threatened in some way or if there’s high research value or interpretive requirements for the park. When you look at an underwater site, here’s what we’ve got. The Service will not allow treasure hunting or commercial salvage activities at or around historic shipwrecks or other submerged cultural resources located within park boundaries unless legally obligated to do so. That’s where we run into this blind where we are dealing with a patchwork of ownership and jurisdictional issues where we may have important cultural resources in our parks that we cannot protect to the degree that we would like to because we do not own the bottom lands.
The general US policy on the recovery of underwater cultural property is dictated by the Federal Archeology Program which is led by, you guessed it, the National Park Service. The idea that there’s a couple of fundamental tenets to keep the collection intact, provide for public access, makes the collection available for scientific research, and also keep the collection in public hands. The position of the treasure hunters is that if the resource isn’t recovered, no one will be able to see it, which, as we said, the technology of accessing sites, is getting cheaper and cheaper and more widely available so I don’t really think that that is true. The other 1 is that if the resources are not recovered they will be lost to the elements and, again, that’s variable as well.
The treasure hunting sort of situation here on the left - gold bars and silver coins and then on the right this is Apostle Islands and local divers have been out on a shipwreck that we have at Apostle Islands and pulled off the fasteners and laid them out and sort of a display. This is something we also see in terrestrial sites but it may also be that they’re laid out in preparation for recovery at some point in the future. The laws applicable to underwater cultural property depend on a couple of things, where the resource is located, is there an owner of the resource, and is the resource historically significant. These are the 3 questions that determine which laws will apply to the cultural resources that we find underwater.
The law that everyone sort of understands or the law that everyone defaults to when they’re looking at underwater stuff is 1 of 2: laws of finds or laws of salvage. The law of finds basically says, “I found it, I get to keep it,” and it’s derived from terrestrial property law and it’s been applied for hundreds of years for underwater sites. The law of salvage also has been around for hundreds of years and the idea is it was really designed to reward people who would risk themselves or their ships to rescue other ships and people who were in peril in a marine environment. The idea behind the law of salvage was a ship that was in peril, in peril of being lost i.e. in peril of sinking in a storm, or on a reef or in some other way, if someone would have the courage to go out and rescue this ship from marine peril, they would be rewarded by a percentage of the value of the ship and the cargo.
What has happened over the hundreds of years is the concept of marine peril has changed and been reinterpreted multiple times. When you look at a ship wreck, a site that’s underwater, the idea is that it is in peril of being lost i.e. it’s in peril of disappearing due to degradation underwater. That is the argument for applying the law of salvage to a marine site. If you remember the slide I showed of differential preservation underwater, what we really see is that that’s not actually true. A site that’s underwater is not really in peril, a site that’s underwater is actually being preserved in many cases very, very well. Yes, a site underwater is degrading but at a much slower rate than a comparable site that would be above water.
In the last probably 20 years, the notion that the law of salvage would be applied to underwater sites, specifically sites that have significant historical value have been challenged. The idea of salvage also is that there is an owner, if you go down and you get a piece of the wreck then you arrest it which means that it belongs to you. You come up and you say, “I have a piece of coal from this ship and this represents my ability to access the site physically to keep it,” then a judge grants you a salvage claim on that. That is a derivation of the idea that once you went out on a ship and got a line on a vessel that was in peril and physically controlled it, then you’re somehow the owner, so that also has changed over time. The other part of it is that, the idea is that not only are you protecting something from marine peril but you’re returning goods to the stream of commerce. That was seen as something that was inherently good. A wreck of something that’s underwater, those material have been lost to commerce and you are bringing them up and returning them to the stream of commerce.
There’s a couple of statutes that have some limited applicability to underwater sites. There is the Antiquities Act 1906; ARPA of 1979, as amended; The National Historic Preservation Act; and NEPA, as well. Generally, these things don’t really address submerged sites head on and they are not a particularly good counter to an aggressive proposal for the use of laws of salvage or laws of find. However, it’s a really good place to start and especially for us in the National Park Service, the ARPA, NHPA and NEPA all provide some solid background to launch into a larger defense of submerged archeological sites using applicable NPS policies and laws.
This is the big 1 that we’ve got right now which is the ASA, the Abandoned Shipwreck Act. What happened with the Abandoned Shipwreck Act in 1987 was that the law was passed and what it said is that abandoned shipwrecks belong to either the states or the federal entities that manage their bottom lands. Basically, it turned into a patchwork of different applications of the Abandoned Shipwreck Act. Under the Abandoned Shipwreck Act, states are able, in general, to do what they want with shipwrecks. Some states have wonderful preservation laws that are directly in line with what we in the National Park Service would choose to do and some states do not.
A question to the audience to make sure you’re still awake, who can tell me which state has 1 of the best shipwreck preservation laws under the ASA? Who said that? Gale? You’re absolutely right. Texas and Wisconsin are 2 of the very best states for preservation which is actually, in my mind, pretty surprising but absolutely true. Which states have the worst preservation laws under the ASA?
Audience: Florida
Dave: Who said that? Jim? Yes, Florida, and where else?
Audience: Alabama
Dave: Alabama denies that they have any underwater resources, so no, they don’t even count. Surprisingly enough, the left coast that bastion of liberalism, California has horrible preservation laws under the Abandoned Shipwreck Act. It’s inconsistent management and the states get to decide. For the National Park Service, there are 2 key elements. The wrecks have to be embedded in submerged lands and we have to be in control of those submerged lands. Then the other thing is that the sites have to be determined eligible for inclusion in the National Register. The ASA was great in that it took the law of shipwrecks and historical resources out from underneath the jurisdiction of the law of salvage and the law of finds. That shipwrecks and their cargo were no longer commodities lost at sea in need of salvage and it meant that historically valuable shipwrecks could be treated as an archeological or historical site instead of commercial property.
The problem is this, is that the issue of embeddedness is somewhat subjective and, also, it needs to be determined eligible for inclusion in the National Register. Those of you out there who have written DOE’s for the National Register for some of the sites in our parks know how difficult that actually is. The other thing is that for The National Park Service and for many other management entities, this law really only works as a reaction to a discovery of a site and by the time the site’s been located, by the time it’s been determined eligible for inclusion in the National Register or not, things have already progressed ways down. I won’t call anyone out, Anna Holloway but we have recently had some of these going on in the National Park Service with regard to reputed Spanish shipwreck at Assateague Island, so a very interesting situation.
A couple of other Acts that may or may not apply to submerged resources that I’m including just for completeness, there’s the National Marine Sanctuary Act, USS Monitor was our nation’s first national Marine sanctuary and it was situated over a single site which is the wreck of the USS Monitor, the Civil War ironclad, the wreck off of Cape Hatteras, it has very strong enforcement tools but it’s limited to resources and national marine sanctuaries. There are places in national parks where we are kind of surrounded by national Marine Sanctuaries. It’s not inconceivable that the national Marine Sanctuary Act could apply to submerged cultural resources that are of interest to us in our national parks. Channel Islands National Marine Sanctuary surrounds Channel Islands National Park, Florida Keys National Marine Sanctuary surrounds [Dry Tortugas National Park and also butts up against Biscayne National Park at its southern border.
There’s actually a historically attested shipwreck, the Guerrero, that went down somewhere close to the border between Biscayne National Park and Florida Keys National Marine Sanctuary, that is of tremendous historical interest to the African American community because it was the scene of a slave revolt. The slaves revolted, took over the ship and then wrecked on the rocks. That site actually may be spread between both the national marine sanctuary and the national park. The Sunken Military Craft Act - I can see that Dr. Gatsby has joined us on the phone and he has taken the lead for the National Park Service, articulating NPS management roles and responsibilities with the Sunken Military Craft Act. The Sunken Military Craft Act protects and asserts ownership claim to thousands of sunken US government warships and military aircraft that are all over the world. Basically, what it says is that these shipwrecks are sovereign property of the United States regardless of the passage of time or their location or their condition and a corollary to that is that foreign military vessels can, in some circumstances, be treated as sovereign immune vessels and protected under the Sunken Military Craft Act if there is a treaty in place for a sort of reciprocal protection of the site.
Traditionally, vessels that belong to foreign military powers and foreign governments are considered a sovereign immune and so in some instances, they are sort of like an embassy that is foreign property that is within our borders. We have a number of vessels that would fall into this category. HMS Fowey is obviously the 1 that we know best, that Biscayne National Park and again, I’m pleased to brag up my colleagues in Washington who went for a long time working patiently and diligently to create an international agreement for the protection and management of HMS Fowey and that was signed 2 years ago. Now we have an agreement to manage what is effectively a British property in a national park in accordance with NPS management policies. The justification is obviously that government wrecks are the final resting place of Americans who died serving their country and unauthorized disturbance threatens the sanctity of these grave sites and this is a growing concern nationally and internationally.
This in and of itself presents its own management problems because there are many World War II ship wrecks that are reaching a point in their sort of gradual curve of decay where they may pose an environmental hazard by releasing petrochemicals, hazardous materials into the environmental. They’re historically important, they’re protected in some cases by the Sunken Military Craft Act yet they pose some sort of environmental threat and need some sort of intervention or mitigation. The purpose of the Act is to protect sunken warships and other government shipwrecks in this case where we have a reciprocal agreement that protects military aircraft lost at sea and protects the remains of their crew. It also encourages foreign countries to protect US wrecks by offering reciprocal treatments to foreign wrecks in US water. This is the SS Leopoldville here on the left and on the right and this ship was torpedoed off the beaches of Normandy by a German submarine. 900 American soldiers died on this ship when it went down in 1944.
In addition to our sort of domestic legislation, there’s international legislation that may or may not have applicability but certainly can be a touchstone for us as we try to manage our underwater sites. There’s the UNESCO convention of 2001, international convention on the protection of underwater cultural heritage which has been ratified by enough countries to enter into force. This is not a convention that the United States has signed onto yet but interestingly enough, due to the participation of NPS people in the drafting of this convention prior to its adoption or publication in 2001, definitely, definitely resembles very much the NPS policies and procedures for the protection of archeological sites. That NPS language was inserted into this convention early on by people like Michele Aubrey and Dan Lenihan who acted as representatives to UNESCO when these things were being drafted.
This international convention is directly in line with what we in the National Park Service do. The Valletta convention of 1992 is sort of a European Union convention which is also in line with the UNESCO convention that applies principally to members of the European Union. ICOMOS also has some ideas, regulations, and best practices for the protection of underwater cultural heritage. Specific instances like the Titanic agreement that Ole Varmer in Washington DC, NOAA General Counsel spearheaded drafting and it provides protection for a single site which is the Titanic which is international legislation relating to the preservation and study of the Titanic. Just to summarize some submerged cultural resources have scientific, historical, educational, recreational, commercial, and other values but they are fragile, finite and non-renewable. Now, this is the thing that I keep bringing up to our colleagues in natural resources and that is, cultural resources are finite, fragile and non-renewable.
If they're impacted they don’t rebound, they don’t get better, they don’t come back. All of our natural resources have some built in ability to rebound to some sort of environmental shock. Cultural resources do not and that is fundamentally different and when we were at the table talking to, arguing with, yelling at, jumping up and down with BP, talking about potential impact to cultural resources caused by the Gulf Oil Spill, they didn’t want to or couldn’t understand the difference between a cultural resource and a natural resource. Try as we might, and there were many good people from the National Park Service, to try to make that happen. I don’t think that ever came through and the thing is, it’s that BP has an economic incentive for not understanding that, but our superintendents and some of our colleagues they don’t have that incentive, we just need to continue to explain that to them. We need to continue to tell them underwater cultural resources, cultural resources anywhere are fundamentally different in character and nature than natural resources and we need to explain that and we need to approach their management differently. Numerous laws apply to submerged cultural resources and again their applicability depends on nature of the resource, on historically important they are and where they’re located. Finally the preferred management strategy for resources under federal jurisdiction is in situ preservation. Is everyone still awake?
Audience: Yes, absolutely.
Dave: All right. Here is your opportunity to get some of that great swag. Here’s the first question in our pop quiz, in 1948 the B-29 superfortress flying out of China Lake, Nevada, crashed into Lake Mead while engaging in top secret high altitude mission. In 2000 local divers found the site using, a site scan sonar and filed a salvage claim. Who owns the plane?
Audience: United States Army Air Force.
Dave: Who is that? Who said that?
Audience: Gail said that.
Dave: Gail, well, yes, Gail, you’re absolutely right but some of the interesting things that occurred, I actually testified as an expert witness for the government in the salvage claim which was adjudicated in Admiralty Court in Las Vegas, Nevada, which nothing is stranger than doing Admiralty Court in Las Vegas, except for maybe having an underwater archeology team in Lakewood, Colorado. They were a couple of things that were really interesting about this particular case because the Army Air Corps turned into the US Air Force in 1949, I think, and then in 1967 they had a huge fire in their archives, all their archival materials related to crashes, most of it was damaged or destroyed. The Air Force said that they has abandoned all formal claims to any crashed aircraft that occurred before 1967 but the interesting thing is that they can’t do that, to abandon a piece of Federal property takes an express act of Congress. They could say that they had abandoned it but they hadn’t really, they couldn’t do that. The other thing was which was really interesting is that, this plane lies at the bottom of Lake Mead and the people who were arguing in support of the Salvage claim, claimed that it was embedded in the Virgin River.
The Virgin River is a navigable water way or was a navigable water way before the creation of Lake Mead National Recreation Area. Well, why that is important is that the bottom land of navigable water ways, belong to the state in which they are located, not to the federal government. The key piece of evidence here is this plane sits upon basically a submerged cliff about 170 feet above the floor of the Virgin River. We could show you in some very clever graphics created by the GIS geniuses at Lake Mead National Recreation area that this plane was not in the bottom of a navigable water way and the lawyer for the salvage claim said that it was actually in a tributary of a navigable water way. At that point, our attorney stood up and screamed unless this has it do with the time of Noah’s flood there’s no possible way that a tributary of the Virgin River was 160 feet above the navigable water way of the Virgin River, but a very interesting case. The other interesting thing is, Gail, that while it probably belongs to the US Army Air Corps, what we did, we the National Park Service, we asserted a custodianship role.
We said, it belongs to the federal government, which part of the federal government is less important than it belongs to the federal government and that site has remained in situ, intact, and I’m pleased to say that it is now a location for guided diving, people who go to Lake Mead National Recreation Area, want to dive on the remains of a B-29 superfortress have the ability to do that with a little bit of supervision and hand holding from a concessionaire. So, very good. Alright, pop quiz number 2, HMS Tyger wrecks in the southern reef off Dry Tortuga National Park in 1742, while on patrol. In 1996, during remote sensing survey operations National Park Service archeologists find the site. Who does the site belong to?
Audience: UK.
Dave: Who said that?
Audience: Gail.
Dave: Gail, you already won your swag, you can’t answer all the questions!
Audience: Different Gail!
Dave: Different Gail, okay. Why did it belong to the UK? You’re right.
Audience: Sanctuary.
Dave: I’m sorry?
Audience: Is Tortugas in the marine sanctuary?
Dave: No, Tortugas is a national park it’s surrounded by the Florida Key National Marine Sanctuary. It belongs to the UK because it’s a sovereign vessel of the United Kingdom. It was a royal Navy ship on a military patrol on an official mission and just for your edification, we’ve got, if you look really closely on the picture on the left there you can see stamped into that barrel hoop, which is a copper barrel hoop for gun powder. You can see the classic British broad arrow stamp and then on the right you can see these are either musket balls or grape shot from the shot lockers. Yes, that site belongs to the UK. Alright, here it is, the last one, the British Royal Navy used bateaux to transport troops down the Hudson River and they were captured by colonial troops during the second battle of Saratoga on October 9th, 1777, and some of the bateaux may have been scuttled in the Hudson River adjacent to Saratoga National Historical Park. The Hudson River is a navigable water way, the state of New York owns the bottom land; if someone found a sunken bateaux, who would they belong to?
Audience: New York.
Dave: I’m sorry, who said that?
Audience: New York. This is Jim.
Dave: Jim.
Audience: I’m going to guess the UK again.
Dave: The UK, is that New York, is that UK, anyone else.
Audience: France.
Dave: France, just on the off chance, right.
Audience: I have a rationale that I could explain why it could be France
Dave: Because it’s got a French name?
Audience: No, because at Yorktown the British naval property was surrendered to France.
Dave: Okay, but that’s Yorktown, not Saratoga.
Audience: But, it was at the end of the war.
Dave: The answer is, I really don’t know, and I just put this up there to show how complicated this could be. If it’s a British military vessel then it’s a sovereign vessel of the British, but if it’s captured by the Americans then it becomes a war prize of the Americans, then it becomes American military property, then it belongs to the Americans. If it’s embedded in the bottom land of the navigable water way, then it belongs to the state of New York and if it’s discovered by a National Park Service archeologists, then I think its Doctor Kendricks’s problem up in the Northeast Region to sort out.
Jim: You’re on my speed dial!
Dave: Anyway, I really don’t know and this is, actually, this issue did come up while we were working with our colleagues up in the North East Region, actually at Saratoga because the Environmental Protection Agency and General Electric has been engaged in a huge dredging project to clean up contaminated sediments out of the bottom lands. Those bottom lands include areas adjacent to the park and the question came up what’s going to happen if we find one of these batteaus. I sent it to my friend and colleague Ole Varmer at NOAA and said, “Find a really bright law school student who likes brain puzzles and see if he can up with an answer!” I think that they disappeared into the bookshelves of law school and have never been seen again but if they come back out we’ve got another job for them, which is to figure out the jurisdiction status of the bottom land at Gulf Islands National Seashore. Anyway, Gail and Jim, if you guys can shoot me an email after this talk, I will make sure that you get your very cool prizes as a result of these talk and I think that’s really it. Are there questions, anything that I missed or you’d like to talk about or examples from your own parks or programs that we can bring up?
Audience: Dave, this is Jim. I would like to talk with you maybe next week about putting together some PMIS statements for future work for Northeast. Look at that strategically and where we might want to focus some work. I’ll be giving you a call.
Dave: Okay, great, and just to give applause for our colleagues down at SEAC, SEAC was actually the birth place of the underwater archeology program of the National Park Service and they have recently reconstituted their dive team and have also been working with us and providing services to the Southeast regional parks. They, too, have been working with parks to put in PMIS statements to help support, protect and document some of the submerged resources that we have in our national parks. Even though we are a national asset here at the Submerged Resource Center, what I would say is that there is so much work out there, we would love to have your participation, we would love to have your help and we would be very happy to facilitate those of you who have an interest in this topic beyond just sitting through a webinar. Any other questions or comments?
Karen: This is Karen. I want to go back to your Saratoga example and talk about sovereign vessels. What exactly is a sovereign vessel? I would never have thought that these bateaux would qualify, anyway.
Dave: Well, the definition of what constitutes to a sovereign vessel is difficult and variable. The cleanest example is when a sovereign vessel is purpose built for military use and is is commissioned as a military vessel> That would be a warship like USS Arizona. There are all sorts of other situations that it may be a sovereign vessel it may not be a sovereign vessel, for example the San Augustin wrecked of off the coast of California at Point Reyes National Sea shore that was a Manila galleon carrying luxury goods back from the Philippines, for trans-shipment over the Isthmus of Panama in the service of Spain. Now the question is, is that a sovereign vessel or not? Well, the kingdom of Spain asserts that it is and we are inclined to support that assertion but other people don’t. There are numerous ship wrecks of off Cape Hatteras and Cape Lookout in North Carolina that were commercial vessels transporting military cargo during World War II that were torpedoed and sunk like Germany submarines.
Now, if there carrying military cargo and they’re part of an organized military convoy that’s protected by navy vessels, are those commercial vessels working for the navy or are those military vessels or not? Karen, to get back to your question of bateaux that might be in the Saratoga river - that were in the Hudson River, next to Saratoga, the question is were they built by the British, were they sold by someone to the British Army or the Royal Navy for use or were they hired locally by traders, trappers, fishermen or not. The answer is that I’ll go back to my disclaimer at the beginning of this I’m not a lawyer, I’m an archeologist but I think those legal questions have not been resolved by case law at this point.
Karen: Wow, that’s another layer of complication.
Dave: Exactly. Other questions or comments?
Karen: I’m always amazed at the level of preservation of these materials and artifacts and the ship wrecks because you think of them sloshing around in the ocean and moving gradually away from the area of deposition but that only takes place, sort of, in the surf zone or the inter-tidal zone, doesn’t it?
Dave: Well, the interesting thing is, one of the things that I like to do in talks like this is really challenge people’s conception of what a shipwreck actually is. When we think of a shipwreck we think of these apocalyptic visions of ships broad side on beaches, and tossed by waves in these cataclysmic storms and stuff but the actual reality is that shipwrecks span the gamut. Shipwrecks are car wrecks, there are head-on collisions at hundreds of miles per hour that destroy cars and, similarly, ship wrecks that destroy ships completely. Then there fender benders that really don’t alter a ship all that much and the ship, maybe it sinks and sits on the bottom almost completely intact. We’ve got shipwrecks like that at Isle Royal National Park and end up - the preservation is absolutely phenomenal, we have the Kamloops that sank in 1903, I think, in very deep, very cold fresh and that still has cardboard boxes of Life Saver candy on board as cargo and the Life Saver candy is still intact, that ship is in that good shape.
It’s also very surprising we have beach shipwreck sites in Channel Islands National Park in California, where it’s in a very high energy intertidal wave surf zone but the ships still have a whole bunch of integrity, there are still demonstrably intact understandable archeological sites with patterning that reflect human use and that can be deciphered in spite of the constant physical effects of wind, waves and currents on those particular sites.
Karen: That is just amazing. I’ve heard that there is very good preservation at the USS Arizona as well.
Dave: Yes, absolutely, in fact, Brett Seymour, the deputy chief here at the Submerged Resources Center and our videographer is going out next week to work with the park to do some interior documentation work in USS Arizona in advance of the 76th anniversary of its sinking would be December 7th of next year but it’s also the centennial. One of the things that we found - we don’t put divers inside that side out of respect for those who lost their lives on it but we have sent our miniature remotely operated vehicle in side to take scientific measurements. While we were in there doing that we came across a hanging locker i.e. a closet in one of the state rooms and in the closet hanging still on a hanger was somebody’s uniform wool coat. That was from 74 years ago and it was still sitting in there intact absolutely phenomenal, unbelievable and again the feet and the shoes of the crew of HL Hunley, the brain in that skull from 10,000 BP, absolutely phenomenal!
Karen: It is amazing. Do we have any other question or comments?
Audience: Great job, Dave. Thank you.
Dave: Well, thank you all for staying awake through this. If you have other questions or comments or anything, please feel free to give a call or shoot me an email. This is how to get in touch with me, we’re always here and nothing makes us happier than helping out our friends and colleagues in our parks. We’re here to help in any way that we can, just let us know.
Audience: Thanks.
Description
David Conlin, 11/19/2015, ArcheoThursday
Duration
1 hour, 6 minutes, 26 seconds
Date Created
11/19/2015
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