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Decisive times for underwater archaeology: Who owns the watery past?

There are an estimated three million undiscovered shipwrecks scattered throughout the world’s oceans. UNESCO is calling for a global treaty to protect them. Salvors say it is unrealistic and unworkable.

London

The last 3,000 years of human history are written at the bottom of the ocean. The record of our past that lies hidden in the undiscovered shipwrecks scattered around the world is an unparalleled archaeological resource waiting to be investigated. As the development of deep-sea exploration technology continues apace, an increasingly polarised debate about who has the right to claim ownership of submerged vessels and the booty they may contain, and how best to manage our underwater cultural heritage is taking shape.

Finders-keepers

While various nations have taken steps to protect, preserve and manage historic shipwrecks within their territorial waters, the same has not been the case for shipwrecks in international waters where there is no comprehensive legal regime that protects underwater sites and little or no sovereign jurisdiction.

Archaeologists warn that with no international legal barriers, highly-sophisticated and well-funded multinational corporations seeking specific shipwrecks for the booty they may contain, will turn the high seas into the Wild West.

These companies, referred to by the archaeological community as treasure-hunters, usually sell shares in limited partnerships to the public. This investment funds the use of the latest undersea technology which now permits the location and recovery of almost anything lost on the seafloor through the use of ships guided by Global Positioning Systems and towing sleds loaded with sidescan sonar, magnetic anomaly detectors, and cameras.

Investors are repaid from profits derived from the sale of artefacts and sometimes the licensing of film and photographic rights.

Extensive scientific excavation is time-consuming and costly. Consequently, salvors’ archaeological efforts are generally limited to recovery of treasure: the remainder is ignored or destroyed.

Some salvors will, where possible, trace a ship’s original owners or their heirs and forge an agreement with them; others do not.

Ownership of abandoned shipwrecks in national and international waters has generally been granted to salvors by US courts on the basis of “finders-keepers”. For the most part these grants have been uncontested.

The Spanish question

In July a Federal Appeals court in the State of Virginia stripped rights to the wrecks of two Spanish frigates from the American company that discovered them within Virginia State waters, and awarded them to Spain.

La Galga sank off the coast of Virginia’s Eastern Shore islands in 1750, and the Juno, purportedly laden with gold and coins, went down a few miles further south in 1802. In 1996, Sea Hunt, a Virginia salvage company, discovered the wrecks and was awarded a permit to excavate them by the State of Virginia which had assumed ownership of the ships under the 1987 Abandoned Shipwreck Act, a federal law giving States jurisdiction over abandoned shipwrecks in coastal waters. In exchange, Sea Hunt was to provide the State of Virginia with a selection of artefacts pulled from the sea and 25% of any profits made by the sale of the discovered booty.

In 1998 a district court granted Sea Hunt exclusive salvage rights. In response, Spain sued for ownership and possession of the vessels, contending that it had never abandoned the ships. The claim was the first made by Spain for sovereignty over sunken Spanish vessels. In the past, Spain has watched in silence as commercial salvors profited from the recovery of sunken Spanish ships.

In 1985 American Mel Fisher discovered the wreck of the Nuestra Señora de Atocha, a galleon that sank off the Florida Keys in 1622. Mr Fisher recovered an estimated $400 million in gold, silver, and jewels. Spain did not lay claim to the hoard.

The Spanish claim to Juno and La Galga was supported by Britain and by the American Interior, State, and Justice departments who argued that allowing private commercial companies to claim foreign ships would open the door to similar treatment of American vessels in international waters.

In awarding sovereignty over the two wrecks back to Spain, the US Fourth Circuit Court of Appeals called the ruling “essential to protecting United States shipwrecks and military grave sites.”

It remains unclear whether Ben Benson, president of Sea Hunt, Inc., who has spent an estimated $2 million on preliminary recovery work and legal fees will appeal the decision to the Supreme Court.

The ruling sets a strong precedent for nations with long maritime traditions who are becoming increasingly aware that advances in technology will make it necessary for them to assert ownership of their sunken vessels or risk losing these ships to commercial salvors. It also shows that grants awarded on a “finders-keepers” basis may be contested by other countries, as well as by other would-be salvors.

UNESCO’s response

UNESCO, the United Nations’ cultural watchdog, is calling for a global treaty to prevent commercial interests from destroying shipwrecks discovered in international waters.

A draft proposal has been under discussion by governmental experts from around the world since June 1998. As it now stands, the draft treaty calls for the regulation of recovery work on sites in international waters and an absolute ban on the sale of recovered artefacts that are over 100 years old. In addition, it stipulates that no salvage operation should take place unless provision has been made for the conservation and museum display of the recovered artefacts. These artefacts should be displayed together as a collection and museums will be permanently barred from deaccessioning these objects.

Speaking to The Art Newspaper, Greg Stemm, Director of Odyssey Marine Exploration, a commercial exploration company, and a member of the US delegation to the UNESCO consultations on the draft convention, says: “Most involved parties recognise the need for objective mechanisms to be put into place. But as it currently stands, the convention is unworkable.”

“The proposed UNESCO legislation stems from a will to fight the illicit salvage of shipwrecks, which is understandable. Based on positions taken at the past Paris UNESCO meetings, it may be difficult for the United States, and perhaps even the United Kingdom, to sign or ratify a convention that provides for an absolute ban on private sector activity, or deaccessioning of artefacts, for any shipwreck over 100 years of age. Both of these countries have suggested they would like to see a test of ‘archaeological significance’ applied to the underwater cultural heritage.”

Because the treaty will only be binding for those countries that ratify it and because at least 70% of the capacity to work in the deep waters is concentrated in the US and Britain, if these two key countries do not sign the convention it will be virtually impossible to enforce in international waters.

Another risk is that draconian legislation will push the now legitimate trade in recovered artefacts, underground. “Some countries that prohibit access to shipwrecks, have lost the opportunity of potentially collaborating with private sector explorers and preserving important objects for their national museums,” says Mr Stemm. “What tends to happen is that artefacts disappear underground if there is not a mechanism for rewarding finders and salvors. Precious materials like silver bullion and bronze cannons are almost certainly melted down so the historical data is lost forever. This does not happen in the United States where legitimate private sector archaeology is encouraged and rewarded.”

For-profit is not always bad

Mr Stemm’s Odyssey Marine Exploration may well provide a model for collaboration between salvors, the archaeological community, and individual governments. “When we founded Odyssey fourteen years ago, we realised that as the industry developed a lot of people would be making claims to shipwrecks in international waters. We decided to work with the assumption that every wreck out there must belong to someone, if not legally, then morally. When we make a discovery, we find the interested party and work with them. This is the correct ethical approach and it makes sound business sense.”

In 1996 Mr Stemm founded the Professional Shipwreck Explorers Association and helped develop a comprehensive code of ethics to guide commercial salvors.

This self-imposed code stipulates that, “any historical and archaeological knowledge derived from shipwreck activity belongs to the public,” and that “it is the responsibility of the member who supervises the exploration, excavation or salvage of any shipwreck to ensure that...as much scientific, historical, and archaeological data as practically possible is gleaned from the site of the shipwreck.”

The code also calls for a Project Archaeologist to be employed on any shipwreck salvage deemed to be historically or archaeologically significant, and that “only those artefacts which have been subjected to thorough study and investigation by the Project Archaeologist” can be offered for sale. “Those items that are deemed to be of irreplaceable archaeological and historical value...should be kept together in a collection which is available for study by anyone that is interested in conducting legitimate research.”

According to Mr Stemm, “The UNESCO stipulation that all material over 100 years old can be recovered only if it can be conserved and stored in a public museum in perpetuity, is astounding. There should be a system that differentiates between objects that are archaeologically significant and should go to museums, and trade goods that were mass produced and are of less archaeological significance.”

“If no allowance is made for museums to de-accession pieces of minimal archaeological significance, the public institutions will simply stop accepting all but the finest pieces from archaeologists. If the museums won’t care for these pieces, who will? Private collectors have proven themselves to be excellent stewards of cultural heritage and antiquities. It would be absurd if people could not own and trade works of art, coins, stamps, toys, and other collectables over 100 years of age—why should it be any different just because something is found underwater?”

The difficulties in trying to safeguard shipwrecks are immense. Mr Stemm explains, “The UNESCO draft is an attempt to create a management scheme for a resource no one has quantified. The most conservative estimate for the number of undiscovered shipwrecks around the world is three million, but some people put the number as high as thirty million. This is a little like trying to create a comprehensive scheme that will protect every building in every country that is over 100 years old.”

While UNESCO continues to hammer out the sticking points of its convention, it is certain that alienating commercial salvors and private sector explorers by prohibitive legislation will be counterproductive.

Governments need the collaboration of these well funded companies to help pay for expensive deep ocean search and recovery archaeology, which can cost up to $50,000 a day depending on the water depth and the type of equipment used.

The next UNESCO meeting to discuss the draft convention is scheduled for April 2001.

The most controversial shipwreck ever found

A case in point: Titanic setting off on her doomed maiden voyage in April, 1912. The ship’s wreck was discovered in international waters in 1985 by a joint French-American expedition led by American oceanographer, Robert Ballard. In 1986, US Congress passed legislation prohibiting the sale of artefacts from the Titanic in the US. In 1994, RMS Titanic, Inc., a New York-based company, was awarded salvage rights to the ship making them exclusive owners of any recovered artefacts, so long as they remain salvor-in-possession, in other words, continue active operations of some kind on the wreck. This American court order is only binding upon US nationals, corporations and ships, and cannot be enforced anywhere else in the world or upon nationals or ships of any other State. To date RMS Titanic, Inc. has recovered some 5,000 artefacts from the vast debris field off the vessel’s stern, less than 5% of the objects that are believed to be in and around the ship. These objects have been restored in conservation laboratories in France and have been seen in travelling exhibitions by some six million people around the world. On 26 July this year RMS Titanic, Inc. issued a public statement declaring: “RMS Titanic, Inc. is a for-profit public company...whose primary mandate is to maximise shareholder value with the intention of maintaining the Company’s exclusive salvor-in-possession status of the Titanic wreck, while respecting the history and integrity of the ship. The Company has the absolute right to sell and may sell items of non-historical and archaeological significance recovered from the Titanic wreck site. Examples of such items include diamonds, gold, species, currency, etc. One of the many targets for recovery on Titanic 2000 Expedition is a shipment of diamonds that were on board the vessel...presently valued in excess of $300 million.” Two days later, US District Judge J. Calvitt Clarke Jr issued an order blocking RMS Titanic, Inc. from cutting into the hull of the ship, to recover artefacts from the interior. The judge also reiterated the ban on selling objects taken from the wreck in the US. Robert Ballard describes the commercial recovery of Titanic artefacts as “grave-robbing” and international pressure is growing for the wreck to be awarded international memorial status in honour of the 1,517 people who perished with the ship and to prevent future commercial expeditions

The recovery of a hoard of fifteenth-century, Vietnamese, blue and white, high-fired stoneware from a wreck off the coast of Hoi An in the South China Sea shows how commercial salvors and governments can work together. Under an agreement negotiated with the Vietnamese government by the Malaysian salvage company, Saga Horizons, some of the finest pieces are being kept for the National History Museum in Hanoi and another 10% will be dispersed around Vietnam’s regional museums. Saga Horizons will sell some 150,000 items through Butterfields, a San Francisco-based auction house owned by the internet auction giant, eBay, on 11-13 October. The sale is expected to realise $16 million. Above, a blue and white dragon ewer

Originally appeared in The Art Newspaper as ‘Who owns the watery past?'