In Print: Volume 86: Number 1
Thar Be Treasure Here: Rights to Ancient Shipwrecks in International Waters—A New Policy Regime
By David Curfman
86 Wash. U. L. Rev. 181 (2008)
(PDF)
Who owns the remains and contents of ancient shipwrecks found on the high seas? The finder? The nation under whose flag the sunken ship originally sailed? The culture from which the wreck and artifacts originated? With the discovery of the RMS Titanic in 1985, a flurry of academic activity arose addressing the ambiguities of the maritime laws concerning wrecks and salvage. A debate ensued over the ownership of new wrecks, which were being recovered from greater and greater depths. Treasure hunters who found the wrecks were placed at odds with governments that claimed title. In addition, a movement arose advocating the idea of “cultural property,” whereby these ancient wrecks belonged either to the whole of humanity or to the culture from whence they originated, mooting the issue of title for the finder. The most recent international attempt to overhaul the system, the United Nations Convention on the Law of the Sea, did little to resolve the ambiguity of wreck ownership. Many wrecks were then, and indeed are still, subjected to the vagaries of protracted litigation. Although many ideas were presented to create UNCLOS, the law remains in need of reform.
In the wake of the influx of new ideas into this antiquated area of law, little has changed. More than twenty years since the Titanic was found, we are no closer to a uniform treatment of wrecks that would alleviate the need for costly litigation. The current case of Odyssey Marine Exploration, Inc. v. Unidentified, Shipwrecked Vessel demonstrates the high stakes involved in such litigation and highlights the need to resolve the issue of ownership for ancient wrecks found in international waters. In this lawsuit, Odyssey Marine Exploration and the Kingdom of Spain are battling in U.S. federal court, in the middle district of Florida, over the rights to a wreck whose treasure is estimated at a value of $500 million.
In cases adjudicated by U.S. federal courts, a new policy is needed. Since wrecks found in international waters are not subject to the sovereignty of any nation, an international structure is needed to replace national sovereignty. Through such a structure, U.S. federal courts can adjudicate the rights of parties who assert their ownership claims in that forum. This new regime should strive to (1) alleviate the burdens of litigation by clarifying the issue of ownership in ancient wrecks, (2) create incentives for the retrieval and preservation of ancient wrecks, and (3) provide a mechanism for the repatriation of ancient cultural property to the rightful nations.
Part III of this Note will use the current case of Odyssey Marine Exploration, Inc. v. Unidentified, Shipwrecked Vessel as an exemplar to address the current state of the maritime law used in the United States and embodied in the United Nations Convention on the Law of the Sea. Specifically, it will address shipwrecks located in international waters. Part IV examines the law of salvage and the law of finds while Part V discusses the present statutory mechanisms that determine ownership in situations other than wrecks on the high seas. After highlighting the shortcomings in the present state of the law, Part VI examines the arguments in favor of and against a theory of cultural property. Finally, Part VII presents policy recommendations for an amendment to the UNCLOS Treaty that addresses the three goals listed above while balancing the interests of the various parties vying for ownership rights.
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