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ABSTRACT
SALVAGED ART AND ANTIQUITIES: AT THE MERCY OF MARITIME LAW
This study suggests laws be more concrete in the repatriation of artifacts
concerning maritime recovery of arts and antiquities. Arts administrators need to be
better informed of the maritime laws and rulings that affect antiquities in museums and
galleries. Research into this thesis has provided evidence that the grey areas in the
maritime and admiralty rulings are responsible for removal of arts and antiquities from
museums. The researcher examines several cases of maritime and admiralty laws
rulings to illustrate the weaknesses and consequent failures of current policies that
support recommendations for change. The suggestions for improvement resulted
through a research process that sought to answer one of this studys critical analysis
questions: How can arts administrators prevent future repercussions to collections
found by treasure wreck salvors, with the gray areas of the maritime and admiralty laws,
in regard to repatriation of the artifacts?
Carla H. SalterOctober 2012
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Dedication
I dedicate this work, with love, to my parents Bernard and Betty Klosowski. They always
believed in me and my dreams. And To my son, Richard Wayne Cuddy III, who had the
courage to head for distant horizons
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SALVAGED ART AND ANTIQUITIES: AT THE MERCY OF MARITIME LAW
By
Carla Hope Salter
A Thesis Submitted To the Faculty of Art Administration Department
in Partial Fulfillment of the Requirements
For the Degree of Master of Arts in Arts Administration
Savannah College of Art and Design
Carla H. Salter
E-Learning Campus
October 2012
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2012 Carla Hope Salter
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ACKNOWLEDGMENTS
I want to thank Savannah College of Art and Design for accepting me into the
Masters Program for Arts Administration. It has been an incredible experience, and I
have thoroughly enjoyed the learning process and getting to know everyone. I want to
thank my thesis committee chair Professor Patrick Kelsey, and Professors Chance
Farago and Thomas Asmuth, my committee members, for all of their patience and
assistance with questions and issues I brought to them.
I would like to acknowledge and thank Brenda Lewis, Director of Exhibits at the
Maryland Science Center for her support and patience with my research questions. Her
knowledge of shipwrecks, Marine Archaeology and Marine Biology were key factors in
answers to most of my questions of her. I would also like to thank Kim Alderman,
Attorney and Professor at the University of Wisconsin Law School, for her assistance
with questions dealing directly with the Black Swancase.
Liz Shows of Odyssey Marine Exploration, LLC was of invaluable assistance
fielding research questions for information and statistics. I want to thank her for all the
effort and people she brought in to help me with the questions dealing with salvage and
treasure that I had.
Many thanks go to Ms. Sharon Drager, of Mel Fishers Treasures in Key West,
FL; she and the people of Mel Fishers group were extremely helpful with research on
the ongoing saga of theAtochatreasure. Another note of appreciation goes to the
Archaeologist, Corey Malcom at Mel Fishers Heritage Society, in Key West, FL. He was
extremely informative in his interview. He generously granted the researcher of this
study the use of artist images of the Nuestra Seora Del La Atocha and artifacts
recovered by the museum.
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TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION ..................................................................................... ..8
1.1 The Research Questions 11
1.2 Research Objectives ...11
1.3 Modern Maritime Impacts on Salvaged Arts and Antiquities ........................... .14
CHAPTER 2: LITERATURE REVIEW ......................................................................... ..17
2.1 Salvage Convention of 1910..21
2.1.1 Abandoned Shipwreck Act of 1987...21
2.1.2 Finds...23
2.1.3. Prizes...24
2.2 Early Salvage Attempts................................................................................... 24
2.3 Captain Sam Bellamy and the Pirate Ship Wydah..31
CHAPTER 3: RESEARCH METHODOLGY .................................................................. 35
3.1 Qualitative and Theoretical Perspectives Methods.......................................... 35
3.2 Multi-Method Research................................................................................... 37
CHAPTER 4:RESULTS AND DISCUSSION ................................................................ 41
Case Studies.. 39
4.1 Safeguarding of Cultural Heritage.41
4.2 Salvage Impact on Archaeology and Culture..42
4.3 International Law Protecting Underwater Cultural Heritage..45
4.4 Maryland Science Center47
4.5 The Fate of the Nuestra Seora de la Mercedes; Code Name: Black
Swan.50
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4.5.1 Follow Up on the Case of the Nuestra Seora de las Mercedes.52
4.6 The Nuestra Seora de la Atocha and Mel Fishers Treasures...54
4.7 Mel Fishers Heritage Society554.8 Summary...57
CHAPTER 5:CONCLUSION AND RECOMMENDATIONS ................................... ....60
BIBLIOGRAPHY ........................................................................................................... 62
APPENDIX A: MAPS .................................................................................................... 66
APPENDIX B: ARTIFACTS ........................................................................................... 68
APPENDIX C: EXAMPLES OF A FLEET SHIP ............................................................. 75
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ILLUSTRATIONS
Figures
1. Descripcin del Districto Del Audiencia Del Hispaniola by Antonio de Herrera y
Tordesillas, Madrid, 1601 67
2. Sword, Before & After 69
3. Silver8 RealesCoin 70
4. Gold 4 EscudosCoin 71
5. Iron Helmet 72
6. Papal Bulla 73
7. Wallpa Tupu 74
8. Artists rendering of theNuestra Seora de la Atocha. 76
9. Artists rendering of theNuestra Seora de la Mar. 77
10. Model of the sinking of theAtochacreated by Dan ONeill. 78
TABLES
1.1Median Annual Attendance for Different Museums 30
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CHAPTER 1: INTRODUCTION AND BACKGROUND
"The ship was cheered, the harbor cleared, merrily did we drop below the kirk,
below the hill, below the lighthouse top. The sun came up upon the left, out of the seacame he! And he shone bright and on the right went down into the sea .1
Throughout the centuries sagas were penned in epic poems and prose about the
great tales of the seas, from Homers Odyssey2to the epic of Beowulf, and the cursed
Seafarer of Samuel Taylor Coleridges Rime of the Ancient Mariner. There has been a
fascination with the sea faring life of adventurers, traders and pirates. Since mankind
first took to the ocean for maritime trade, supplies and war ships carried all the comforts
of civilization. There have been merchant ships, war frigate's, fishermen and
monumental armadas from Spain which carried Kings Ransoms and her Queens
dowries across the emerald fathoms of the ocean.3From the Phoenicians, the Queen of
Sheba, the Minoans on the Aegean Sea, the merchant traders, pirates, privateers, and
the world conquerors all played a role in shipping of goods treasures arts and
antiquities. Many ships docked at the harbor of Antietam at the end of the Silk Road and
took on treasures and spices of the Orient to convey to other parts of the world.
Ships laden with gold, pearls, silks, incense, spices and precious oils embarked
on perilous journeys across the worlds seven seas. Ports of call and harbors awaited
fantastic cargoes. Along with these wondrous treasures came the dangers of the open
sea. Hurricanes, typhoons, sickness and pirates all played a hand in whether these
1A stanza from the epic poem The Rime of the Ancient Marinerby Samuel Taylor Coleridge penned in
1797.
2Homer dates to between 750 to 650 BC. The poem mainly centers on the Greek hero Odysseus (or
Ulysses, as he was known in Roman myths) and his journey home, across the sea, after the fall of Troy. It takes
Odysseus ten years to reach Ithaca after the ten-year Trojan War.
3Bob Weller. Salvaging Spanish Sunken Treasure.(Lake Worth. Crossed Anchors Salvage. 2009.)
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ships made their home ports or not. One port of call that pirates and merchants alike
frequented was Port Royal Jamaica. It was known as the Treasury of the West Indiesthe worlds wickedest city. At 11:40 a.m. on June 7, 1692, three earthquakes rumbled
through Port Royal, and part of the city sank into the sea. The ruins scattered in the
Kingston Harbor, and the remains of the city encompass 13 acres at depths of up to 40
feet. Archaeological investigations of the site began in 1959, with a group known as
Geographic-Smithsonian-Link. In 1981, the Nautical Archaeology Program of Texas
A&M University headed another archaeological exploration. The skeleton of a British
ship the H.M.S. Swan, historical documents, organic artifacts, and a vast amount of
architectural debris were discovered in the turbid waters. The sunken 17th century city
was once a bustling place where buccaneers including the infamous Captain Henry
Morgan docked in search of rum, women and treasure.4
Pirates looted merchant ships that carried gold, stealing off in rapid sloops with
their precious treasure and cargo. Hurricanes came and toppled fleets of ships sending
them to the watery grave that awaited them below. Sometimes the ships would become
waterlogged and drift aimlessly half in and half out of the water, and the treasures would
be jettisoned to allow the crew to try and take the ship into shore. Sometimes ships
were intentionally run aground to try and save cargos and crews.5
Ships captains followed the trade winds to make time and get to harbor on time.
The trade winds are a wind that blows steadily towards the thermal equator, and they
deflect westwardly by the eastward rotation of the earth.6Meteorological studies show
4Robert F. Burgess. Sinkings, Salvages and Shipwrecks. (Lincoln. American Heritage Press. 1970.)
5Keith Huntress.Narratives of Shipwrecks and Disasters. (Ames. The Iowa State University Press. 1974)
6Terence Grocott.Shipwrecks of the Revolutionary & Napoleonic Era. (Mechanicsburg. Stackpole Books.
1997)
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that close to the equatorial line there are converging winds from the Northern and
Southern hemispheres which tend to cancel each other out. This is a phenomenoncaused by the extreme high pressure and heat of the area. These areas near the
equator became known as the horse latitudes7because ships foundered in the
doldrums that affect the sea there. No wind would be available for the ships sails to
hold, and the crews would be forced to jettison cargo into the sea, such as treasures
and livestock which even included their horses. The lessening of the loads allowed
some ships to row into a place where they might pick up a breeze and possibly continue
underway.
These jettisoned treasures were in most cases, lost to anyone, and there were
no recovery attempts in that area of the seas.
Sovereign states tried to protect these fleets of ships with the likes of the West
Indies Trading Company out of Britain trying to keep the ships from pirates and plunder.
Ships manifests read like a castle's contents. The law of the sea at the time 16th and
17th century fell under the basic premise of finders keepers if a ship foundered and/or
ran ashore on rocks. Whoever survived the wreck had maritime authority to reclaim that
wreck for supplies that might have survived the storms or washed ashore, or beach
combers who might happen upon the wreckage could claim the ship as their own and
take from it whatever they could get.8Pirates, on the other hand, plundered and
pillaged taking the riches for their own.
Some of the first, modern maritime laws took place on the books in 1906 stating
that wrecks of sovereign states, classified as a warship under commission could not be
7"horse latitude". Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica
Inc., 2012. Web. .
8Arthur T. Vanderbilt II. Treasure Wreck: The Fortunes and Fate of the Pirate Ship Wydah.(Atglen.
Schiffer Publishing. 2007)
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salvaged by anyone. If the vessel was salvaged, it was stated that it remained under the
rule of a sovereign nation that came from and was to be returned. As time went on, artsand antiquities were salvaged by divers and collectors. These artifacts and antiquities
found their way to private collections and museums.
The purpose of this thesis is to look into the maritime and Admiralty laws that are
on the books currently and to examine their roles in the repatriation and provenance of
arts and antiquities that are salvaged from shipwrecks, and how these issues affect the
arts administration field. Primary research and analysis has not shown any established
order of repatriation on the books in maritime and Admiralty law; only that active-duty
naval vessels of a noncommercial status remained the property of the countries that
commissioned them. This brings up the issue of whether or not maritime laws should
actually be helpful in the repatriation of arts and antiquities from salvaged wrecks, and if
so, how the rulings differ. This paper researches and analyzes the effects and impact of
maritime law on Museum collections, private collectors, cultural ramifications and the
impact on the arts administration field, and perhaps shows gaps in the laws that no set
law of repatriation truly exists in regard to salvaged treasure, arts and antiquities.
A review of relevant literature surrounding the recovery of shipwrecked arts and
antiquities and the sovereign states involved, viewed from government, art,
archaeological, and media perspectives help to determine the scope, needs and
limitations involved in answering the studys main research question. A range of
statutory shortcomings regarding the repatriation of salvaged property, identified
through this probe, which contributed to this studys recommendations for advancement.
In order to justify the authors proposals, interviews were conducted with curators of
museums, attorneys specializing in cultural property, museum executives, and
archaeologists.
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1.1 The Research QuestionsWhy are salvaged art and antiquities at the mercy of maritime law, and how can
arts administrators prevent future repercussions to collections found by treasure
salvors, with the gray areas of the maritime and admiralty laws, in regard to repatriation
of the artifacts?
In regard to salvaged art and antiquities from shipwrecks, if a state or
government protests the salvage of the ship and artifacts on board under the Maritime
laws, Law of the Sea Conventions, and the Shipwreck Act of 1987, the country or state
in question can file court papers and declare the ship/ shipwreck was a voyage
undertaken by the sovereignty of that country, even though it seems that no known
formal law for repatriation of salvaged art and antiquities exists. This impacts the Arts
Administration field on several levels, from the legal and ethical standpoint dealing with
art and antiquities, the archaeological insertion that treasures should remain in situ9on
wreck sites, and the possible negative impact on museums and galleries losing parts or
all of the valuable collections.
Should the antiquities be subject to repatriation if the antiquities are alienated
from their archaeological context? One of the problems in the repatriation of artifacts is
that most of the laws concern looting and pillaging of artifacts in war time. The issues
that this paper investigates are the difference of the repatriation of salvaged art and
artifacts and the laws that exist as opposed to the standard laws of the looted artifacts.
There is a difference between artifacts discovered as a salvage operation and one of
war. When the original treasures were transported on a ship, and it was taken down by
9in situ- in the natural or original position or place. Latin, in position. First Known Use: 1740
http://www.merriam-webster.com/dictionary/in situ
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a hurricane that does not constitute an act of war so traditional laws of repatriation
should not apply. It has been argued that the rules under which time the fleets sailedshould be applied at this time. The rules are in some cases over 300 years old. These
results should not only improve an arts administrators consideration of salvaged art and
antiquities, but also serve to illustrate the necessity of international cooperation with
regard to the enforcement of repatriation laws under the maritime and admiralty
jurisdiction.
Partage10is the practice of sharing found antiquities between countries. This
was practiced for many years until into the early 20thcentury when the practice was
discontinued. This has contributed to some of the repatriation of artifacts. The flood of
retentionist cultural property laws essentially put a stop to the practice. There is no
longer a guideline for the sharing of artifacts as there once was.11Since that is the
case, the laws of repatriation have been tightened, especially in the cases of looted
antiquities. In the case of a salvaged shipwreck, one might ask if the laws would apply,
since these are not cases of looted or plundered treasure, or acquired by an act of war.
The salvaged antiquities are removed from watery graves and brought into the realm of
the modern museum and gallery.
The purpose of this research project is to shed light on the lesser known issue
of salvaged arts and antiquities, and how they are affected by the Maritime and
Admiralty courts and their decisions on repatriation of the artifacts. The researcher of
this thesis sheds light on the impermanent rules of the Admiralty courts and how these
rules can be adapted to suit the situation. The author of this thesis wants this research
10Partage-Division; the act of dividing or sharing. http://dictionary.reference.com/browse/partage
11 James Cunos book Who Owns Antiquity? The Battle over Our Ancient Heritage.discusses the
practice of thepartageand he discusses the issues of cultural property and who it belongs to.
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in this particular study to aid in the creation of legal procedures that will be more
concrete in regard to the treasures on shipwrecks. The researcher hopes that this studymay hold some positive impact on the field of arts administration. This study is of
considerable interest to the researcher because of her interest in art history and laws
that impact cultural artifacts, as well as her degree studies in the field of arts
administration.
The methods that this researcher applies are the use of secondary sources,
such as books, documents and legal briefs. First hand sources are utilized for interviews
and data regarding the case studies of salvaged ship wrecks and the treasures they
carried. The data has been collected and analyzed for similarities, differences and the
gaps that became evident as the research continued.
Limitations to this study lay in the fact that most art administrators are not
lawyers, nor do they specialize in maritime and Admiralty laws, and how this applies to
the salvaged arts and antiquities that an arts administrator or museum curator may have
in their collections. This study will be most beneficial to the arts administration field, but
may not be a mainstream discovery; therefore the access to this is limited mostly to
scholars, academics, law professors and arts administrators.
1.2 Modern Maritime Impacts on Salvaged Arts and Antiquities
Questions arose when mainstream media covered salvage operations such as
Mel Fisher's 1982 discovery of the Nuestra Seora de la Atocha, a Spanish wreck from
1622. The wreck was discovered off the Florida Keys and after Mr. Fisher salvaged the
arts and antiquities board what was left of the ship, Spain and the United States battled
Mr. Fisher, for possession of the treasures.
Mr. Fisher contested maritime laws stating that he was within the territorial
waters of the United States and the ship was not a commissioned warship. In his case,
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he won the battle against the existing maritime and Admiralty laws of the time. This is
one of many cases that have been argued in maritime and Admiralty courts of law allover the world.
In recent events, a Spanish ship was located by the salvage company known as
Odyssey Marine Explorations, Inc. They salvaged the wreck, investing $24 million of
their own money into the project. Spain proceeded to sue them under the sovereignty
act claiming that it was a 36 gun frigate from the 1800s and that it fell under the
category of warship. Spain claimed that all of the gold silver and treasure on board
remained the property of sovereign states of Spain and they had never declined
ownership of the ship. After five years, eight dismissals from maritime courts against
Spain, the case appeared before one judge in the federal Admiralty court. He listened to
the appeal of the Spanish government and without further ado sent back $550 million
worth of treasure and artifacts to the Spanish government thereby overruling and setting
null all previous court judgments against Spain.
Some archaeologists believe that treasure salvors are nothing more than grave
robbers that seek to destroy the shipwreck sites. Others, such as Bob Weller, who is a
veteran treasure diver since the 1960s, emphasizes that not only is treasure salvage
rewarding in a financial way, but there is the knowledge obtained about the history of
the Spanish Fleets, and he speaks highly of preserving wreck sites for others to enjoy
even after the salvage of the artifacts has been completed. He states that to damage
the sites deprives others of the chance to experience history underwater.12
12Ibid. 3.
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In the history of shipwrecks, there are many nations, such as Africa, France,
England, Spain, Mxico and South America to name a few. The shipping lanes ran fromthe West Indies to the coasts of South America to Canada and back to Europe. 13
13Keith Huntress.Narratives of Shipwrecks and Disasters:1586-1860. (Ames. The Iowa State University
Press. 1974.)
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CHAPTER 2: LITERATURE REVIEW
The research for this thesis covers the history of shipwrecks, treasure salvageand ownership of said riches. This thesis explores what differentiates pirate shipwrecks,
merchant ships and those claimed to be warships by sovereign countries. This also
discusses changing laws of Admiralty and maritime courts and how these laws can be
swayed by variables. This also deliberates the costs associated with salvaging treasure
and any Museum's expenses of gathering collections and the impact of Admiralty
rulings that return arts and artifacts.
Early references to maritime trafficking are apparent even in the early kingdoms
of Egypt and all along the Silk Road. According to Gardner's Art through the Ages,
Romans from the second century BC knew of silks from China and sought the luxurious
fabrics for their own. Rome was extremely instrumental in sea travel especially in the
Mediterranean. Early documentation speaks of the protection of treasures and
merchandise using cylinder seals14which clearly marked the goods of the merchant
and usually represented a high ranking personage.
The cylinder seals were intricately embossed and small enough that there could
be no forgeries made of the seal in route to the next destination. This prevented the
merchants goods from being pilfered along the track. If the seals were damaged, it was
a clear indication that the merchandise had been tampered with.15
Early seafarers included Anglo-Saxons the Celts and the Vikings. The Vikings
were fierce pre-Christian traders and Pirates of the sea. They even discovered North
14Cylinder Seals or Mesopotamian Seals were commonly made of stone and strung on cord to be worn
around the neck or wrist. Their design was such that they were rolled over clay and there was a raised impression
left on the clay. Their purpose was to identify documents and protect storage jars and goods from unauthorized
opening.
15Kleiner, Fred S. Gardner's Art through the Ages: A Global History. 13th Edition.(New York City:
Wadsworth, 2008.) 1.
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America before Christopher Columbus ever got there. In both English and Nordic lore,
there are references to ships burials.16
These are the spoken of the classic poemBeowulf. Ships would be laden with treasure and sent out to the sea the dead Lord
upon it. At first one would think that Beowulf17was a mythical writing except when one
goes to an archaeological find, with the ship, which was located 1939 by archaeologists
in a burial mound at Suffolk, England, at the edge of the sea. This mound known as
Sutton Hoo, is located in a group of Anglo-Saxon burial mounds.18This ship is
described in Beowulf. The poemwas written in the 1100s during the mediaeval period.
Dating has put the original script possibly as far back as 700. The original text was in
Saxon, and there are possibly two authors.19
Maritime law reaches back as far as the Roman Empire, as it stood at the time.
Frank L. Marists bookAdmiralty in a Nutshell touches on the summation of the Rules of
Olron, a set of maritime laws that are approximately 1000 years old and were
established by the Romans and used in the Mediterranean. The Rolls of Olronremain
from the time of the crusades and are the first known maritime and admiralty laws in
Europe.20Around 1160, Eleanor of Aquitaine brought the laws with her, back to
16Ibid. 2.
17Beowulftakes place in 6th century Denmark and Sweden. The Geats (Beowulf's tribe) inhabited the
southern part of Sweden) and Hrothgar and his glorious mead-hall Heorot were from the Danish island, Sjaelland.
Some historical digressions in the epic poem take place in other parts of Sweden, but also Denmark, Germany,
Poland and "the Low Countries."http://csis.pace.edu/grendel/projf20004d/History.html
18http://www.suttonhoo.org The Sutton Hoo Society, a registered charity, was established to support the work ofthe Sutton Hoo Research Project, which undertook an archaeological excavation and research programbetween1983 and 1992. Today, the Society has an extensive training program for Sutton Hoo Society Guides who offerburial site tours and Exhibition Talks, and works alongside the National Trust to promote interest in the site andAnglo-Saxon archaeology and history.
19http://csis.pace.edu/grendel/projf20004d/History.html
20Benedict on Admiralty, Matthew Bender & Co. v1, Ch II, 26
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England, after her return from the second crusade, accompanied by her first husband
King Louis VII. She spread the laws into England at the very end of the twelfth centuryhaving been granted vice regal powers of England, by her son, King Richard I, while he
was away on a third crusade. The laws were based upon the ancient Lex Rhodia21,
which had directed Mediterranean trade since before the time of Christ. Eleanor
became acquainted with them while at the court of King Baldwin III of Jerusalem, who
had adopted them, as the Maritime Assizes of the Kingdom of Jerusalem. 22
Article XXXII of the Roles of Olron state that if by reason of tempestuous
weather, it be thought advantageous, for the lightening of any ship or vessel at sea, or
riding at anchor, to cast part of the lading overboard, and it be done accordingly for the
common safety, though the goods ejected, and cast overboard, do become his that can
first possess himself thereof, and carry them away: nevertheless, it is here to be further
understood, that this holds true only in such cases, as when the master, merchant, and
mariners have so ejected or cast out the said goods, as that they give over all hope or
desire of ever recovering them again, and so leave them as things utterly lost and given
over by them, without ever making any enquiry or pursuit after them: in which case only
the first occupant becomes the lawful proprietor thereof.23
21Lex Rhodia de jactuoriginated from the Greek island of Rhodes. By 100 ADLex Rhodiaaddressed the
five most important matters concerning maritime trade and drafted detailed regulations regarding each.
http://www.mgmus.com/maximize5.25.05.html
22 Europe since the rise of the Italian Republics at the close of the ninth century; for its
(insurances) provisions are not found, as we have seen, in the Roman laws, nor are they in those reflections of
the Code, the Consolata del Mare, or the Laws of Oleron. No proof of the existence of the system is afforded even
in the earlier period of the Middle Ages. Yet in the Codes which remain from the time of the Crusades the laws
are sufficiently minute and decisive. Manley Hopkins.A Manual of Marine Insurance. (London. Smith, Elder &
Co.1897.)
23http://www.admiraltylawguide.com/documents/oleron.html
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20
The laws were published in French and English. King Henry VIII published them
as "The judgment of the sea, of Masters, of Mariners, and Merchants, and all theirdoings." The Rolls significantly influenced the English Black Book of the Admiralty. 24
These laws were then again adapted for American Shipping laws. This scholarly
book also covers international conventions on salvage, abandoned shipwrecks salvage,
the Salvage convention of 1910. These are all relevant points in the research for this
thesis, especially on salvaged art and antiquities. The author, Frank Marist has stated
the basic principle of salvage as follows: "One who voluntarily rescues maritime
property, which is derelict, or in peril is entitled to an award commensurate with the
value of the property, the risk involved and the effort expended. The award is
determined by the court."
Maritime and Admiralty laws govern a large seafaring section of activities. It is a
distinct branch of federal law with both decisional and statutory sources.
Decisional, or "general," maritime law is drawn from the maritime law of nations, which
the federal courts have accepted and adopted under the maritime jurisdiction conferred
by article 111.25The U.S. Constitution article III, 2 provides, "[the judicial Power shall
extend ... to all Cases of admiralty and maritime Jurisdiction." The Judiciary Act of
1789, granted "exclusive" federal jurisdiction over maritime cases but qualified the
grant by "saving to suitors, in all cases, the right of a common law remedy, where the
common law is competent to give it."26This law is in effect still in the modern maritime
24Keevil, John JoyceMedicine and the Navy,1200-1900,vol.1: 1200-1649. Livingstone. 1957.
25Farrel v. United States, 336 U.S. 511, 517 (1949); The Western Maid, 257 U.S. 419, 432 (1922); The
Lottawanna, 88 U.S. (21 Wall.) 558, 572-77 (1874) (drawing analogy between adoption of maritime and common
law).
26Powell v. Offshore Navigation, Inc.: Jurisdiction over Maritime Claims and the Right to Trial by
Jury. Barbara Bennett Woodhouse. Reviewed work(s): Source: Columbia Law Review, Vol. 82, No. 4 (May,
1982), pp. 784-810
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courts whenever there is a dispute over ownership of a wrecked vessel and its cargo or
the maritime location of the occurrence.Traditionally, the general maritime laws ofsalvage and finds have governed the treatment of shipwrecks.
2.1 Salvage Convention of 1910
Salvage, the provision of a financial reward for the rescue of property from
maritime peril dates back to Roman times. During the 20th century much of the law of
salvage was governed by the Salvage Convention of 1910 to which the United States
was a party. That convention generally restated American salvage law, however, and
several of its provisions were found in the salvage act. As a result convention rarely was
cited in American courts. The United States ratified the 1989 International Convention
on salvage which became effective in 1996. The Convention parallels American
maritime law and many essential particulars in addition the convention is limited in its
application relegating many matters to local control by state members and excepting
certain property from its reach. 27
2.1.1 Abandoned Shipwreck Act of 1987
In 1987, Congress approved the passage of the Abandoned Shipwreck Act of
1987 (ASA). On April 28, 1988, President Ronald Reagan signed the bill into law.
Exercising its power to fix and determine the maritime law which shall prevail
throughout the country, Congress stated that ship- wrecks subject to the ASA are no
longer governed by the laws of salvage or finds. Through the ASA, the United States
asserts title to certain shipwrecks. Title to those shipwrecks is simultaneously
transferred to the state in or on whose submerged lands the shipwreck is located.
27Frank L Maraist.Admiralty in a Nutshell 6th edition. (St. Paul. West Publishing Co.. 2010)
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By definition from the Abandoned Shipwreck Act of 1987, a shipwreck is a vessel
or wreck and its contents. The vessel or wreck may be intact or broken into pieces. Thismeans the vessel can be scattered upon, or buried in, sand or coral formations. The
wreck includes, but is not limited to, the hull, armament, apparel, cargo and other
contents. Isolated artifacts scattered about, not associated with the vessel, whether
imbedded or not, do not fit the true definition of a shipwreck.
An abandoned shipwreck is defined as a vessel that has been sunk, and the title
has been voluntarily surrendered and no intention is present to attempt the salvage of
the vessel. If the owner of the vessel does not give indication of intent to salvage, then it
is assumed by the United States Coast Guard and the U.S. Army Corps of Engineers
that title has been given up on the vessel. These particular vessels are considered
abandoned within 30 days of the sinking if no active attempt is made to recover them.
If the title is paid for and the owner of the vessel transfers it to the salvor, then it
is no longer considered an abandoned shipwreck. In cases of ships of sovereign
nations, when a vessel sinks, the vessel remains the property of the flag nation. The
cargo and vessel are not considered abandoned unless the country actively files to
release its claim on the ship or to sell the title to a salvor.
If the cargo on board the ship has been gained unlawfully then the claim to
ownership cannot be allowed. The ships that fall under these sovereignty guidelines are
the WWII military ships, German U-Boats, U.S. Naval Battleships, Confederate
Gunboats and Union Ironclads from the Civil War, British Frigates and Colonial
Privateers from the Revolutionary war.28
28http://www.unesco.org/culture/natlaws/media/pdf/usa/usa_shipwreckact_guidelines_enorof.pdf
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Rhode Island has also found it to be in its interest to govern the treatment of
certain shipwrecks located in its waters. Since 1974, the state has governed theseshipwrecks through the Antiquities Act of Rhode Island (Antiquities Act). 29
2.1.2 Finds
Finds has been applied in some cases of treasure salvage, eliminating the
former owner and generating an ownership battle between the finder and the sovereign.
If the owner disclaims ownership, or the property has been abandoned at sea for a long
period of time it may be unreasonable to allow the owner to assert a claim in opposition
to the salvor. Under such circumstances, maritime law may classify the property as
foundnot salvaged, and under the doctrine of findsmay reward the rescuer with
ownership of the property rather than the lesser work for salvage. There appears to be
no clear line of demarcation between properties that are salvagedand a property that is
a find. Courts generally favor salvage over finds, which eliminates previous owners
claim to all property. Federal sovereign has asserted title to all abandoned shipwrecks
which are embedded, meaning firmly affixed in the water and sediment and the use of
tools of excavation are required to remove the shipwreck, within American waters, and
has transferred each to the state, title so that the abandoned shipwrecks located within
the state become property of that state. The Abandoned Shipwreck Act of 1987
provides that the law of salvage and the law of finds do not apply to abandoned
shipwrecks in its coverage.
Remarkable issues arise when the state desires to establish ownership of the
shipwreck under the Abandoned Shipwreck Act, and the finder wants to shield the state
and others from the location of the wreck until key issues can be resolved.
29HAS THE ANTIQUITIES ACT GONE DOWN WITH THE SHIP? A PREEMPTION ANALYSIS OF
RHODE ISLAND'S SHIPWRECK LAWS by Michael J. Daly
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2.1.3 Prize
Prizeis a sovereign's capture at Sea of a vessel or other property of an enemybelligerent during the time of war. The capture takes the vessel to a prize court, where
the issue of prize or no prize adjudicated in an in remproceeding. If the decision is
prizethe vessel is sold , and the proceeds are paid to the captor. Prize has not played a
significant role in American Admiralty law in the 20th and 21st centuries.30
2.2 Early Salvage Attempts
The earliest recorded shipwrecks can be located in the Archives of the Indies in
Seville, Spain. There are records there that speak of the hurricane in 1641 that
decimated the Spanish fleet that traveled with the Nuestra Seora de la Atocha.The
records state that the treasure that theAtochacarried was one of the richest that Spain
had set upon the oceans. There was actually a salvage attempted on the Nuestra
Seora de la Atocha. That same year, the Spanish Marquis of Cadreita commissioned
Gaspar de Vargas, a veteran seaman, to find the wreckage and recover the gold and
silver that she held. There were reports that the mizzenmast of theAtochawas visible
above the waterline at the Key of Matecumbe. Vargas and a man named Lopez set
about locating the wreck for salvage. First attempts were unsuccessful, as the divers
could not penetrate the sealed hatches and cargo doors of theAtocha. The men sailed
away to locate another of the lost fleet that was run aground. Some months passed
while they salvaged the other wreck. They then returned to the last known location of
theAtocha.31
30Frank L Maraist.Admiralty in a Nutshell 6th edition. (St. Paul. West Publishing Co.. 2010)
31R. Duncan Mathewson III, Treasureof the Atocha: A Four Hundred Million Dollar Archaeological
Adventure. (New York. Pisces Books. 1986).3.
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Pearl divers, the Lucayan Indians, were brought along, since they were
physically powerful and they could hold their breath for extended periods of time. Therewas even a primitive diving bell put into operation. The salvage attempts were futile for
the most part. Some of the divers worked to exhaustion and even death. The winter was
coming in, and the water was cold, and the diving bell did little for fresh oxygen. The
Spaniards never relocated theAtochaonly her sister ship, the Margarita.32They were
only able to locate and recover approximately half of the treasure that the Margaritahad
carried. Most of the silver and gold was melted at the site on the beach and reminted
into coinage for transfer back to Spain. The treasure was meant to finance the Thirty
Year Wars. Spain took a financial hit, and they were forced to seek funding and borrow
money from other countries.33
Coming into the contemporary time of the 17thand 18thcenturies, we find that
fleets of the Spanish Armada were anxious to explore the world, sending out fantastic
ships for exploration and battling England for control of the high seas. There are several
works of literature and scholarly texts written about this, such as James Lewis's book
The Spanish Convoy of 1750: Heavens Hammer and International Diplomacy. This
book discusses Spains overreaching grasp in the ocean with trade all the way to the
equatorial lines, West Indies, Canary Islands and just about any place that had a port of
trade. Mr. Lewis talks about the war ship La Galgaand the issues surrounding the
salvage of the ships goods. Of the Spanish convoy that Mr. Lewis writes that there
were seven ships in the flotilla. Two of the ships are of specific interest to this
researcher. There was the ship, LaGalga (the Greyhound), and her sister ship the
Mercedes.The Galgasank in a hurricane off the coast of colonial Maryland and
32Ibid. 4.
33Ibid. 5.
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Virginias border, on September 6, 1750 while the Mercedesescaped the wrath of that
particular storm.34
Fifty four years later, the Nuestra Seora de las Mercedes (OurLady of Mercy), the Spanish frigate, would sink by British attack, off the south coast of
Portugal on 5 October 1804 during the Battle of Cape Santa Maria, and would be at the
forefront of a legal battle with Spain.
The childrens story Misty of Chincoteague, written by Marguerite Henry, in 1947
loosely refers to the Galgassinking off of Virginia as a source of the ponies that are
part of the Assateague islands.35Salvage attempts on the Galgawere started by
Richard L. Cook of the Alpha Quest Corporation and then the Sea Hunt Corporation
owned by Ben Benson, came in and began the search and salvage process in 1996.
Mr. Benson was a self-made millionaire and he had the clout to take over and arrange
for all the red tape to begin to disappear.36During this time, Mr. Benson had arranged
for the salvage by obtaining permission from the Army Corps of Engineers and the
Virginia Marine Resources Commission, beginning the salvage in 1996. He was about
ready to uncover the Galga when the National Park Services of Virginia decided they
had issues with the salvage, even if the Army Corps of Engineers did not.37
There was another ship in the vicinity of the Galga, the Juno. It foundered in
1802 and now both wrecks sat on the bottom less than a half mile from the Assateague
Islands National Park. The Maritime Archaeological and Historical Society of
34James A. Lewis. The Spanish Convoy of 1750: Heavens Hammer and International Diplomacy.
(Gainesville. University of Florida Press.2009). 6.
35Ibid. 7.
36Ibid. 8.
37Ibid. 9.
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The reason the Norfolk courts were chosen is their acquired knowledge and expertise of
maritime and admiralty laws over the past decades of the 20
th
century in dealing withcases and legal issues connected to the Titanic, Lusitania, Central America and other
famed maritime discoveries.42
The resulting awards eventually turned to the favor of Spain under the 1902
Treaty of Friendship and General Relationships between Spain and the United States.
Sea Hunt was prevented from salvaging the wreck(s) anymore, and ownership of the
wrecks was awarded to Spain.
There are several other well-known ships from Spanish Armadas, one being the
Atochawhich was discovered in 1982 by Mel Fisher. A battle ensued for ownership
between the state of Florida, and Mel Fisher over the rightful ownership of the salvaged
wreckage treasures. Florida laid claim to the 17thcentury galleon, stating that the
Florida statutes automatically made the find the property of the state. Arrest warrants
were issued, and Mel Fisher was forced into a contract with the state that allowed the
state to pay the treasure salvor only 75% of the treasures value. Mel Fisher filed a
countersuit. In an unusual move by the government, on March 17, 1975, in an
environmental dispute which actually had no bearing on the Nuestra Senora de la
ordered an arrest of the shipwrecks, appointing Sea Hunt the exclusive salvor. Spain filed a verified claim asserting
ownership over the shipwrecks. The district court found that Spain retained title to JUNO, but had expressly
abandoned LA GALGA in the 1763 Definitive Treaty of Peace. See Sea Hunt, Inc. v. Unidentified, Shipwrecked
Vessel or Vessels, 47 F. Supp. 2d 678 (E.D. Va. 1999). The district court also denied Sea Hunt a salvage award.
As sovereign vessels of Spain, LA GALGA and JUNO are covered by the 1902 Treaty of Friendship andGeneral Relations between the United States and Spain. The reciprocal immunities established by this treaty are
essential to protecting United States shipwrecks and military gravesites. Under the terms of this treaty, Spanish
vessels, like those belonging to the United States, may only be abandoned by express acts. Sea Hunt cannot show by
clear and convincing evidence that the Kingdom of Spain has expressly abandoned these ships in either the 1763
Treaty or the 1819 Treaty of Amity, Settlement and Limits, which ended the War of 1812. We therefore reverse the
judgment of the district court with regard to LA GALGA, and affirm the judgment of the district court concerning
JUNO and the denial of a salvage award.
42Ibid. 13.
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Atochasituation, the United States Supreme Court ruled that the boundary between the
Atlantic Ocean and Gulf of Mexico was incorrect, and changed the line. This actionrelocated the wreck site to 14.4 km offshore in the Atlantic, or 9.6 km outside Florida's
jurisdiction.43This action by the government and16 years of fighting with the
government of Florida resulted in Mel Fisher being awarded the entire treasure. The
book Treasure of Atocha: A Four Hundred Million Dollar Archaeological Adventure
discusses the court battle as well as the original discovery. According to documentation
since the recent discovery of the Black Swanby Odyssey Marine exploration, Mel
Fisher's group states there should be no repercussions on their original lawsuit that
involved Spain.
There are issues with international and national laws and the impact on
archaeological and treasure salvage finds. Some of this is discussed by Paul Forsythe
Johnston, in his article, "Treasure Salvage, Archaeological Ethics and Maritime
Museums."in The International Journal of Nautical Archaeology. In another
archaeological argument, Wilburn A. Cockrell, an archaeologist for the state of Florida,
wrote a paper, The Trouble with Treasure: A Preservationist View of the Controversy. In
the paper, treasure hunters are akin to the archaeologist Schliemann, who annihilated
the ruins of Troy in his search for gold. Cockrells argument is that the professional
treasure hunters who stumble across a shipwreck tell the archaeologists that they would
not have been able to locate the wreck if not for them. He also states that the
shipwrecks are essentially time capsules sealed under the water and the treasure salvor
comes in and destroys the site in their search for wealth and fame. Mr. Cockrell states,
that out of Floridas documented 5000 shipwrecks, only a few hundred qualify as
43The Trouble with Treasure: A Preservationist View of the Controversy,Wilburn A. Cockrell, 1980
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treasure wrecks. He states that pirates and early salvage attempts by the sovereign
nations would have eliminated a lot of the potential for treasure. Most of the situation hesays is brought on by the hype of the news media.
Coming forward into the 21st century, we have the battle for the ship simply
known as the Black Swan. The Odyssey Marine Exploration, Inc. Group salvaged this
ship in open, international waters and brought the treasures back to the states. Spain
sought to take the treasure back claiming it was theirs. Peru stepped in to state that the
treasure never made it to Spain, so the gold technically belonged to them. Several
papers have been written, such as a legal brief by the Professor and attorney, Kim
Alderman from the University of Wisconsin Law School, entitled High Seas Shipwreck
Pits Treasure Hunters against a Sovereign Nation: The Black Swan Case." In this brief
Ms. Alderman talks about the issues of the sovereign rules and the treasure and who it
belongs to. Her argument is that the treasure from the Mercedeshas not been proven
beyond a doubt that the treasure even came from that ship. There are several issues
that seem to negate the fact that the treasure was found on the Nuestra Senora de las
Mercedes. This aspect of the fact-intensive litigation was critical to Odysseys argument
because if the coins recovered were indeed privately owned, then the natural
conclusion might be that Spain would have no interest in the coins, perhaps only in the
remains of the ship. In this case, however, no vessel was ever located or recovered.
Odyssey distinguished it was the Mercedesfrom the recovered coins, arguing
that even if the ship itself conveyed sovereignty under the maritime laws, sovereignty
would not apply to the private cargo carried by the Mercedes. The District Court,
however, explained in their order granting Spains motion to dismiss that the ship and
the cargo are indistinguishable for the purposes of the Foreign Sovereign Immunities
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Act.44Several other maritime lawyers, such as R. Sebastian Gibson "California Art
Attorney, Maritime Shipwreck Lawyer And International Antiquities Attorney AnalyzesOwnership Of Shipwrecks, Stolen Art And Antiquities and extensive news media
coverage have all added to the legal issues involved in the recovery of salvage
treasures and who has rightful ownership. Under the laws of sovereignty, a country can
say that a ship was never abandoned even though it is over 300 years old. In this
particular domain, it becomes an issue of is it political or monetary?
2.3 Captain Sam Bellamy and his Pirate Ship Wydah
Three scholarly texts cover the saga of the New England Pirate Samuel
Bellamy and his ship the Wydah. This shows another facet of the history of maritime
profession and brings in the acts of piracy into the merchant shipping trade. The book
Pirates! An A-Z Encyclopedia: Brigands, Buccaneers, and Privateers in Fact, Fiction,
and Legend, written by Dr. Jan Rogoziski, gives a well-documented biography of the
ill-fated pirate. In 1716, Bellamy sailed as a pirate under Benjamin Hornigold. Hornigold
eventually left because he refused to loot British vessels. The crew elected Bellamy
Captain, and they captured several vessels near the Virgin Islands. While cruising
between Haiti and Cuba, the pirates captured the slave ship Wydahthat was returning
to London with gold, ivory, sugar and indigo45. Bellamy began the return voyage
towards Virginia. On the trip north, four more ships were pillaged as they made for
Rhode Island. During the night of May 17, 1717, the Wydahwas wrecked in a heavy fog
44This is from an interview with Ms. Kimberly Alderman and Ms. Alders brief on the status of the
Odyssey Marine Exploration and the Black Swan Case.High Seas Shipwreck Pits Treasure Hunters Against a
Sovereign Nation: The Black Swan Case
45Indigo-A tropical plant (genus Indigofera) of the pea family, which was formerly widely cultivated as a
source of dark blue dye. www.merriam-webster.com/dictionary/indigo
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when the ship slammed into a sandbar three miles South of Wellfleet, Massachusetts,
and Bellamys home. Two of the 146 men aboard reached safety and were captured.Bellamy was killed in the wreck. The nine seamen who reached the shore were tried in
Boston for piracy and seven were hanged.
Attempts to salvage the Wydahscargo after the tragedy, (reportedly worth
20,000 British pounds at the time), were hampered by foul weather conditions and the
wreckage of the ship being spread four miles along the coastline. 46
The book, Expedtion Wydah: The Story of the Worlds First Excavation of a
Pirate Treasure Ship and the Man Who Found Her is a first-hand account of the wreck
of the Wydahand the life of Samuel Bellamy, written by Barry Clifford who located the
elusive shipwreck. In 1983, Barry Clifford began his search for the Wydah. As the
salvage attempt was underway they located part of the hull of the ship. Drawings were
made of the hull and shown to an archaeologist of the Smithsonian Institute. The
archaeologist said that the ship's drawings could not possibly be from an 18th century
ship. There was a dispute over metal banding. This was later disproven. The media
were interested in the ship find so Barry Clifford continued to search and talk to the
media. According to the National Historic Preservation Act, Section 10647requires that
salvage crews have an on-site archaeologist at all times during excavation. The team
archaeologist quit. When this occurred salvage operations were shut down by the
Massachusetts Board of Underwater Archaeological Resources48.
46Jan Rogoziski. Pirates! An A-Z Encyclopedia: Brigands, Bucanneers, and Privateers in Fact, Fiction,
and Legend.(New York. De Capo Press. 1996)
47Advisory Council on Historic Preservation. http://www.achp.gov/106summary.html
48Established in 1973, the Massachusetts Board of Underwater Archaeological Resources (BUAR) is the
sole trustee of the Commonwealth's underwater cultural heritage. The nine-member state Board is a statutory
program of the Executive Office of Energy and Environmental Affairs. BUAR has been administratively hosted by
Massachusetts Office of Coastal Zone Management (CZM) since 1986.
http://www.mass.gov/czm/buar/overview.htm
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An archaeologist was eventually put in place, and the salvers returned to work.
John F. Kennedy Junior, son of the late president John F. Kennedy was first mate ofClifford's ship, Vast Explorer,that summer. Veteran treasure salvor Mel Fisher was also
a consultant on the expedition. In November 1983 Barry Clifford was taken to court in
Boston. The courts upheld the validity of the 1973 Underwater Archaeological
Resources Act49approving claim of Massachusetts to one fourth of the treasure which
was salvaged from the Wydah.
In the book, Treasure Wreck: The Fortunes and Fate of the Pirate Ship Wydah,
Arthur T. VanderbiltIIcovers the story of the life and times of Samuel Bellamy, his ill-
fated love of Maria Hallet and the ship that would bring him ultimately to ruin. The text
covers documents of the court hearing for the seven men that were hanged for piracy in
1717 as well as a thorough documentation of the salvage venture by Barry Clifford for
the Wydah.The texts cover the artifacts that are brought up from cannons to a leather
shoe with the imprint of the wearers foot there even after 267 years in the ocean
depths.
The books also discuss the ramifications of salvage work and the impact that
they have on archaeological sites. These books discuss the laws and the court
proceedings that allow or disallow the salvage process and the extent of the direct
49Under Massachusetts General Law Chapter 6, sections 179-180, and Chapter 91, section 63, BUAR is
charged with encouraging the discovery and reporting, as well as the preservation and protection, of underwater
archaeological resources. Generally, those resources are defined as abandoned property, artifacts, treasure troves,
and shipwrecks that have remained unclaimed for over 100 years, or exceed a value of $5,000, or are judged by theBoard to be of historical value. The Commonwealth holds title to these resources and retains regulatory authority
over their use. The Board's jurisdiction extends over the inland and coastal waters of the state.
No person may remove, displace, damage, or destroy any underwater archaeological resource except in
conformity with permits issued by the Board. To deal with certain types of artifact discoveries, the Board's
regulations provide an exemption from the permit process for isolated finds and exempted sites.
http://www.mass.gov/czm/buar/overview.htm
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impact of the local government to control the preservation of shipwreck sites and the
artifacts on those sites.
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CHAPTER 3: RESEARCH METHODOLOGY
The purpose of this study is to answer that primary research question: Why aresalvaged art and antiquities at the mercy of maritime laws? Although this research has
utilized both quantitative and qualitative methods, the principal method adapted has
been mixed methodology research, through interviews, data collection and scholarly
texts. The researcher used a narrative approach to this thesis, and the research
question has been identified and determined that it is in a historical category. This
researcher believes that to have an understanding of the issues of maritime and
admiralty laws surrounding the debate over ownership of wrecks, and the salvaged arts
and antiquities from them and standing practices regarding cultural property and arts
collections, are crucial aspects in understanding where the issues lie within the arts
administration field.
This researcher approached several salvor businesses and museums and
interviewed the company CEOs, legal department personnel, marketing personnel, and
directors of exhibits. The researcher also selected and referenced several cases that
were high profile in the world of shipwrecks and salvaged arts and antiquities. This
author did research on the companies and personnel in each, looking for the most
knowledgeable for the research questions.
3.1 Qualitative and Theoretical Perspectives Methods
Upon reading scholarly texts, the author of this thesis located information in the
bookApplications of Case Study Researchby Dr. Robert Yin, which states that the case
study method embraces the full set of procedures to do a case study work. Dr. Yin
discusses the benefits of developing a theoretical perspective in conjunction with design
and analysis tasks. He also states the importance of triangulating among the data
sources. In his writing, he states that all case studies research start from the same
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compelling feature: the desire to derive an up close in depth understanding of a single
or a small number of cases set in their real world contexts. Dr. Yin also says that onecan apply a case study to common, everyday phenomenon or to some outstanding
event and the author will be able to successfully achieve an outcome.
Dr. Yin also suggests using initial theoretical perspective and in general the less
experience one has in doing case study research, the more the researcher may want to
adopt theoretical perspectives. Multiple case studies allowed this researcher to
triangulate the data for an outcome of hypothesis.
These processes allow the author of this thesis to collect data, both quantitative
and qualitative, and maintain an open end process for gathering further information and
data. The researcher attempts to show data that addresses and investigates
phenomenon as richly descriptive and provides opportunities for further research in the
field of arts administration dealing with salvaged art and antiquities.
In his book,Applications of Case Study Research, Dr. Yin also speaks of six
common sources of evidence in doing case studies. He advises direct observation,
interviews, archival records, documents, participant observation and physical artifacts.
The author of this thesis has applied this principle of case study using two separate
companies that salvage shipwrecks for art and antiquities. There is a third interview
done with the Maryland Science Center which helps to eliminate the possibility of a null
analysis.50
50Robert K. Yin. Case Study Research: Design and Methods.Volume 5 of Applied Social Research
Methods Series.(Thousand Oaks. Sage Publications. 2008)
http://www.google.com/search?tbo=p&tbm=bks&q=bibliogroup:%22Applied+Social+Research+Methods+Series%22&source=gbs_metadata_r&cad=8http://www.google.com/search?tbo=p&tbm=bks&q=bibliogroup:%22Applied+Social+Research+Methods+Series%22&source=gbs_metadata_r&cad=8http://www.google.com/search?tbo=p&tbm=bks&q=bibliogroup:%22Applied+Social+Research+Methods+Series%22&source=gbs_metadata_r&cad=8http://www.google.com/search?tbo=p&tbm=bks&q=bibliogroup:%22Applied+Social+Research+Methods+Series%22&source=gbs_metadata_r&cad=87/25/2019 Salvaged Art & Antiquities: At the Mercy of Maritime Law
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3.2 Mult i-Method Research
In the multimethod research procedure, both qualitative and quantitative methods
can be used in any research paradigm. Qualitative research tends to use direct open-
ended questions to participants. Surveys include sectional and longitudinal studies
usage structure. The researcher of this thesis employed the qualitative research to
gather as much information as was possible in the interviews with the subjects.
In John Cresswells book Research Design: Qualitative, Quantitive and Mixed
Method Approacheshe states that to include only quantitative and qualitative
methods falls short of the principal approaches being used today in the social and
human sciences. Other philosophical assumptions beyond those advanced in 1994
have been widely discussed in the literature. Most notably, critical perspectives,
advocacy/participatory perspectives, and pragmatic ideas (e.g., Tashakkori and
Taddile,1998) is being extensively discussed. Although philosophical ideas remain
largely hidden in research they still influence the practice of research and need to be
identified.
Creswell states that brought assumptions can be brought into a narrow focus
using the question model such as:
1. What knowledge claims are being made by the researcher (including a
theoretical perspective)?
2. What strategies of inquiry will inform the procedures?
3. What methods of data collection and analysis will be used?
Meanings are constructed by human beings as they engage with the world they
are interpreting. Qualitative researchers tend to use open-ended questions so that
participants can express their views. 51
51John Creswell discusses the processes for the model questions in his book Research Design:
Qualitative, Quantitive and Mixed-Methods Approaches 2nd Ed.
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The author of this thesis uses a series of open-ended questions to gather data
from Mel Fishers Treasures, Odyssey Marine Exploration,Mel Fishers HeritageSociety, and the Maryland Science Center. The data collected from these questions has
been compared and analyzed for convergence of information.
Creswell also states in his book, Research Design: Qualitative, Quantitive and
Mixed-Methods Approaches 2nd Ed. In which the quantitive approach uses post
positive causes for developing knowledge, and collecting data that yield statistics. A
qualitative approach based on constructivist perspectives and again mixed method
approach what is being used by the writer of this thesis. The researcher chose the
mixed method approach using pragmatic knowledge and collecting both types of data at
the same time. The study started with a broad survey to generalize results and used
open-ended interviews to collect data to use toward case studies.
The author of this thesis in research and investigation and through a theoretical
lens has narrowed the focus to the lack of laws in place to govern the repatriation of
salvaged art and antiquities. The authors research has uncovered gaps in the legal
system concerning issues of repatriation of art and antiquities salvaged from
shipwrecks.
The case studies allowed the researcher to demonstrate hypothesis and study
historical events leading up to modern-day rulings in courts that have a potential to
impact the arts administration field. This study tested a central theory of two cases that
employed the historical phenomenon of salvaged art antiquities and how it affects the
arts administration field. This can also be seen from a societal phenomenon, as some
sovereign countries are seeking to pursue criminal charges of theft against salvors,
museums, and private collectors of salvaged of arts and antiquities.
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The societal phenomenon points also to suggestions for how arts administrators
can prevent illegal rulings from ravaging collections and museums are becoming victimsof the counterfeiters of treasures. There are examples of treasure being reproduced,
such as dates being filed off the newly minted artifacts, and the pieces being aged to
create replicas that rival the original. Fraudulent and counterfeited artifacts are an
imminent problem faced by the arts administration field.
The researcher chose to use mixed method research because it allowed a wider
field of study. The researcher used targeted interview questions to gather pertinent facts
and data. This specific exploration relied on interviews regarding the cases, archival and
pertinent documents and how they were tied into the study. This specific method has
drawbacks. When doing research, one comes across so much information that it is
time-consuming to sort data. Also, using the multiple research approach puts the author
at a disadvantage with timetables waiting for interviewees to respond and to arrange
further contact for the interviews. This actual research method can create a broad
definition, but with organization, they can be brought back into a manageable focus so
that the author stays on task.
To obtain primary sources, the researcher interviewed persons directly related to
the research cases. The interviews provided a primary source and first-person
perspective. The use of reports, journals and texts, were accessed during the research.
Maritime and Admiralty laws were consulted to reach decisions. Archival records such
as ships manifests were accessed through the national archives and the Archive of the
Indies, located in Seville, Spain.
Data interpretation was accomplished by the researcher after extensive
examination of the data. The researcher stayed with the central hypothesis to maintain
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the focus on the core issue of salvaged art and antiquities. The author of this thesis also
addresses the question, Is there a foreseeable end to this issue? If not, why?The researchers examination tends to point to the gap in the Admiralty law and
the seemingly non-concrete enforcement of the salvage laws. It would seem until that
particular law is addressed that elicit rulings could possibly continue to the detriment of
the arts administration field.
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CHAPTER 4:RESULTS AND DISCUSSION
The authors research has uncovered gaps in the legal system concerning issues
of repatriation of art and antiquities salvaged from shipwrecks. The salvage laws as set
forth in the Maritime courts tend to fall back on antiquated legislation as far back as the
laws have been recorded. In some cases, it has been suggested that the courts and the
claims are settled in the shadow of the courts out of the courtroom to avoid the battles.
In regard to interviews with Mel Fishers Treasures and Odyssey Marine Exploration, a
set of questions were asked of each company, both dealing with theAtochaand the
Black Swancase. The questions were remarkably similar in the form of case study on
the two wrecks. The case study for these two directly addressed one of the questions
from the research, Why are some salvaged shipwrecks and the arts and antiquities
found, protected, while others are returned to other countries; is it for political or
financial gain?
In each case, the shipwrecks differed in how they were affected by court rulings
of maritime and Admiralty courts. Regarding the case of the Nuestra Seora de la
Atocha, the United States and tried to take the ship and its treasures from Mel Fisher
stating that it was found in jurisdictional waters of the United States. The find occurred
in 1982, after 16 years of looking for the shipwreck. It took another eight years of court
battles to get the treasure awarded to Mel Fisher. Now, Mel Fishers Treasures goes
before an Admiralty court for adjudication each year, to show the treasures that they
have found, and await ruling to see if they will be awarded title to the new finds.
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In the incident of Odyssey Marine Exploration concerning the case of the Black
Swan, Spain alleged the ship was the Nuestra Seora de la Mercedes, an 18th century
war ship. The area in which the shipwreck was found was in a shipping area that had
numerous other wrecks on the ocean floor. There was no hull or identifying marks to
prove that this particular ship that the Odyssey Marine Exploration Team had found was
indeed the Nuestra Seora de la Mercedes. The case was heard eight different times in
maritime courts, and dismissed. Spain continued to pursue the issue, and brought it into
Admiralty court one more time. This time the ruling was in favor of Spain. The author's
research of the two cases, and the validity of the parties involved indicate that it was not
financially motivated but in high probability was politically driven. The difficulty with that
is that according to Admiralty laws and maritime guidelines the United States is not to
side with a foreign country against an American salver, so there are gray areas that
could in the future affect museums in their collections.
4.1 Safeguarding of Cultural Heritage
In 1970, the United Nations Educational, Scientific and Cultural Organization
(UNESCO) formed a convention that would protect artifacts and antiquities from being
plundered and removed from the country(s) of origin. In 1982-83, an experimental
project was undertaken to inventory and catalog arts and antiquities and then it followed
suit that the inventories and documentation eventually extended to include
archaeological digs and sites.
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In the case of Spain, a law was adopted in July 1985 that states that illegal
pillage and transport of cultural heritage artifacts and antiquities and retrieval of those
artifacts that have come into the hands of antiquities dealers from disreputable sources
would have to be returned.
A special unit has been set up to investigate offenses to the Spanish cultural
heritage. The law also provides fiscal amnesty for anyone who claimed their antiquities
prior to 1986. Trade in cultural objects is fair as long as guidelines are followed. These
include the petition for a license and approval to transfer the item out of the country. Any
artifact that is over 100 years old or is listed in the General Inventory of Moveable
property cannot be exported without express permission of the State Administration.
The State Administration can make a decree and prevent cultural heritage items
from being exported. The objects exported without the approval of the State
Administration are considered property of the state and are undisputable and cannot be
removed. The law divines that the cultural heritage pieces are protected and included in
the budget is a 1% fee to finance works for the conservation of Spanish cultural
heritage. Penalties are enacted when the laws are not obeyed.(UNESCO)
With the Cultural Property Implementation act, the United States came into the
UNESCO convention. This Law forbids the import of illegal art and cultural artifacts
especially those with a record of belonging to a museum or other institution, into the
country. It is the duty of the United States Customs Service to seize the stolen cultural
property and notify the country of origin via their embassy and arrange for the return of
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the items. The United States may impose sanctions on certain ethnological and
archaeological articles if a State party requests this in writing. 52
4.2 Salvage Impact on Archaeology and Culture
During several interviews and in secondary resources the issue of archaeology
and culture arose. There are many differing opinions on this aspect of the work with
shipwrecks and wreck sites and artifacts and treasures recovered from the wreck sites.
Many archaeologists advocate keeping the wreck sites intact and only allowing for thecataloguing and removal of artifacts by certified archaeological teams. In most cases of
wreck salvage, if the waters are territorial, as in the waters of the United States and off
of a specific coastline, the salvage company must get permission from the state to begin
work on the site. In these cases, the state archaeologists are called in, and they will
document and catalog the wreck and the site. That has been the case with several
ships located in waters near countries, such as Greece, the United States, and Spain.
In the 1970s UNESCO created a convention to prevent the looting and selling of
antiquities. The 1970 Convention requires its States Parties to take action in these main
fields: Preventive measures: Inventories, export certificates, monitoring trade,
imposition of penal or administrative sanctions, educational campaigns, etc.
Restitution provisions in Article 7 of the Convention, states parties undertake,
at the request of the State Party "of origin", to take appropriate steps to recover and
return any such cultural property imported after the entry into force of this Convention in
both States concerned, provided, however, that the requesting State shall pay just
52UNESCO established guidelines to return arts and antiquities to countries that had been rifled in the
wars.
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compensation to an innocent purchaser or to a person who has valid title to that
property. More indirectly and subject to domestic legislation, Article 13 of theConvention also provides provisions on restitution and cooperation.
International cooperation framework: The idea of strengthening cooperation
among and between States Parties is present throughout the Convention. In cases
where cultural patrimony is in jeopardy from pillage, Article 9 provides a possibility for
more specific undertakings such as a call for import and export controls. 53
These guidelines work well with established laws such as the Native American
Graves and Repatriation Act of 1990, which is a concrete law that establishes a
protection against the looting of Native American grave sites and archaeological digs.
4.3International Law Protecting Underwater Cultural Heritage
The Convention on the Protection of Underwater Cultural Heritage entered into
power in January 2, 2009. Adopted in 2001 by the United Nations Educational, Scientific
and Cultural Organizations (UNESCO) General Conference, the Convention represents
an international response to the increased looting and destruction of underwater cultural
heritage by treasure hunters.54
The Convention is based on four main principles:
The obligation to preserve underwater cultural heritage
53http://www.unesco.org/new/en/culture/themes/movable-heritage-and-museums/illicit-traffic-of-cultural-
property/1970-convention/
54ART & CULTURAL HERITAGE LAW NEWSLETTER. FALL 2008, VOL. I, ISSUE NO. IV
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in situ preservation policy and scientific rules for research & recovery
no commercial exploitation of this heritage
Co-operation among States to protect this heritage, particularly training,
education and outreach.
The Convention does not adjudicate ownership claims nor bias the jurisdiction or
sovereignty of States. The Conventions Annex establishes rules for activities directed
at underwater sites; these rules are widely recognized by archeologists. The twenty
States Parties include: Barbados, Bulgaria, Cambodia, Croatia, Cuba, Ecuador,
Lebanon, Libya, Lithuania, Mexico, Montenegro, Nigeria, Panama, Paraguay, Portugal,
Romania, Saint Lucia, Slovenia, Spain and Ukraine. The United States and a number of
other maritime nations have not yet signed the Convention due to reservations on
treatment of sunken warships in the territorial waters, and what is referred to as
creeping coastal state jurisdiction over underwater cultural heritage on and the EEZ or
Exclusive Economic Zone.55
In regard to underwater cultural heritage on the continental shelf and in the EEZ,
the United States, through the Department of State, in 2004 joined the United Kingdom
in signing an International Agreement for the Protection of the Titanic. It provides a
potential model for other agreements that fully addresses the United States concerns
about creeping coastal State jurisdiction consistent with the Law of the Sea
55US Naval War College.Military Activities in the EEZ: A US-China Dialogue on Security and
International Law in the Maritime Commons.(Newport. US Naval War College. 2010.)
http://www.usnwc.edu/Research---Gaming/China-Maritime-Studies-Institute/Publications/documents/China-
Maritime-Study-7_Military-Activities-in-the-.pdf
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Convention. The Annex to the Titanic Agreement is nearly identical to the Annex of
the UNESCO Underwater Cultural Heritage Convention.
4.4 Maryland Science Center
In an interview with Ms. Brenda Lewis56, the Exhibits Director at the Maryland
Science Center, the researcher was able to ask questions that addressed the research
question, How does the repatriation of salvaged arts and antiquities from shipwrecks
impact arts administration, museums (including maritime museums) and archaeological
concerns? Ms. Lewis discussed the issues of marine archaeology, Marine biology, and
the educational process that salvaged art and antiquities from shipwrecks essentially
afford both children and adults.
The researcher was able to gather information from Ms. Lewis that spoke to the
issues of archaeological issues, as well as preservation of wreck sites. Ms. Lewis stated
that the wreck information and artifacts that they had gotten from Odyssey Marine
Explorations not only showed the beauty of the treasure but that it also allowed the
Maryland Science Center to incorporate aspects of Marine biology and oceanography,
into the program, such as the impact of hurricanes on the armadas,as well as illustrate
the history of merchant ships and pirates. Exhibits like this also address sustainability
and conservation within the arts administration field. The Maryland Science Center had
the Exhibit for 4 months from October 2010 to January 2011. Ms. Lewis advised that the
56Ms. Brenda Lewis, the Director of Exhibits at the Maryland Science Center was interviewed via
telephone and email.
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court ruling against Odyssey Marine Exploration, in favor of Spain, had fortunately not
affected the exhibit at the time it was at the Science Center.
Ms. Lewis addressed another shipwreck that, although not a treasure ship, it was
famous in another way. The Exhibit was known as the Titanic Science, and in this the
hundredth year anniversary of the sinking of the Titanic; the museum addressed the fact
that repatriation of articles from the Titanic would be detrimental to the collection. The
Maryland Science Center used artifacts to create educational aspects of the shipwreck.
Staterooms were constructed, placards were made, and students as well as visitors
would collect a placard at the start of the tour.
Each placard either had the name of a survivor, or someone who did not live. For
each person, there was one card. The premise of the exhibit was to walk through and
view the staterooms, the artifacts and belongings that were brought from the Titanic,
including the demitasse tea sets from the dining hall that were used by the wealthy
patrons. At the end of the tour, there was a roll book. The participants would look at the
name of whom they had been, look up the name and find out if they had been one who
survived the wreck of the Titanic, or if they held the placard of someone who died.
Ms. Lewis stated that to set up the science Center exhibits required man-hours at
conferences arranged by the Association of American Museums. Marketing and any
acquisition of the exhibits required labor for installation and setup as well as tear downs.
She restated that any type of repatriation during an exhibit would be costly both to the
center itself and the potential loss of income generated by the exhibits.
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Ms. Lewis went on to tell the researcher of this thesis that to set up and tear
down a display and the cost for bringing in temporary exhibits to the Maryland Science
Center varies, depending of course of the exhibit itself, size, time taken to
install/takedown. Most exhibitors want to make money on leasing out temporary
exhibits. The Mary