Showdown at the Shipwreck Corral:
Big Brother or Wild West?

Underwater Magazine - July/August, 2000
by Greg Stemm

Some of the legal, political, and diplomatic conflicts over the control of shipwrecks appear to be heading toward a dramatic resolution in the near future. As Greg Stemm explains, the arenas are many: UNESCO's attempted assertion of Underwater Cultural Heritage management responsibilities, Spain's assertion of Sovereign Immunity over its Colonial shipwrecks, U.S. Navy airplane issues, 19th Century steamships full of gold, and lately, the complicated conflict over the Titanic.

The rhetoric is getting louder and the legal fees are mounting. As I see it, the essence of the conflict arises from two polarized schools of thought: the Wild West versus Big Brother. I haven't heard these labels applied before, but they seem to fairly represent the issues. More on this Manichean battle later. But first, how does one track these rapidly shifting issues?

For me, given the four hats I wear these days, keeping all the relevant issues on my radar simultaneously is becoming an interesting challenge. As a member of the U.S. delegation to the UNESCO expert meetings for negotiations of the Convention for the Protection of Underwater Cultural Heritage (I wish they could come up with an acronym), I am asked to contribute my opinions to the development of the U.S. government's position.

As President of the Professional Shipwreck Explorers Association, I represent the views of those that wish to make a living in the shipwreck exploration field. As co-founder and Director of Odyssey Marine Exploration, I have a responsibility to the shareholders of a company that intends to make a profit from archaeologically-sound shipwreck exploration. Since Odyssey pays my salary, this responsibility goes to the top of the list.

And from a significant moral standpoint, if not a fiduciary one, I take my membership in the Nautical Archaeology Society very seriously.

I must confess that as I am called on to take a position on each new shipwreck policy battle that comes up, I have found that these different positions provide me with unique, and sometimes conflicting, perspectives.

I'm the kind of guy that likes to wait until I've heard what every single person has to say before taking a position. It used to be much easier to arrive at an absolute opinion when I was younger and smarter. After the lessons of my own fallibility have been rammed down my throat by the cosmos, I tend to discount the certainty of my own position until it's been tempered by a reasoned response.

So What Does This Have to do with Shipwrecks?

The conflicts of interest that I routinely face, given my somewhat divergent responsibilities, seem to be focused on one issue lately: Who gets the final say in managing shipwrecks?

The Wild West school of thought essentially boils down to freedom of the high seas and respect for property rights. It is a great "American Pioneer" approach, and not surprisingly, very popular with the entrepreneurs of the shipwreck world - treasure hunters, commercial salvors, and those that expect to profit from their undersea adventures.

It goes something like this: "I risked my life, my money (or my investor's money) to find this shipwreck that everyone else had given up on - or didn't have the perseverance to find. It's mine alone and I don't want anyone telling me what I can and can't do with my hard-earned property."

The legal twist on this position is the desire to have all shipwrecks administered by Admiralty Court, where judges have proven themselves fairly friendly to commercial salvors. The courts provide a level playing field where the bench often allows the economic viability of a site to take precedence over the presumed right of governments to regulate access to shipwrecks. In short, it is often about the best deal that a salvor can hope for.

The extreme opposite position is that of "Big Brother." The most extreme members of the historical preservation community envision that a group of appointed "managers" in some federal or international agency should decide who can do what to historically or archaeologically significant shipwrecks and when. Whether we like it or not, most aspects of our lives are managed in this manner, from the zoning ordinances that control how we use the land that we "own," to the requirement to get a license to own a dog or fish in your own backyard.

The recent legal hassles surrounding the shipwreck of the RMS Titanic have brought this battle to a head. For those of you that do not pay close attention to these issues, I'll provide a simplified view of the issue.

In 1993, Judge Calvitt Clarke gave RMS Titanic Inc. (RMST) exclusive salvage rights to the Titanic vessel. I could spend many pages on the complex sub-issues of this case, which include whether salvage rights include preventing someone else from even visiting your shipwreck, but that's another article.

For the past few years, RMST has sought to be a very good steward of the shipwreck of the Titanic. They have kept the collection of cultural artifacts together (with the exception of bits of coal), and used them to educate the public. Moreover, they have taken a responsible approach to collecting, recording, curating, and managing artifacts from what is considered by many to be an important underwater cultural (or heritage) resource.

Everyone was pretty happy with this arrangement, but there was trouble brewing. Seems that back in 1986, Congress passed the Titanic Maritime Memorial Act. This Act required (among other things) NOAA to develop international guidelines for the protection and management of the final resting place of the Titanic. It also directed the Department of State to negotiate a multi-country agreement to ensure that the Titanic was treated as a maritime memorial, appropriate to its designation as a heritage site.

Whether Congress had a constitutional right to enact legislation relating to a British shipwreck in international waters is another issue. The fact is that the Act passed, but there was little international interest in negotiating the international agreement or discussing the guidelines at that time.

Years went by, and very little was heard about this Act. Then in 1995 there was an exhibition of Titanic artifacts in England at the British National Maritime Museum, which spawned a conference of experts called in to discuss the legal, political, and cultural aspects of the Titanic exhibit.

According to my sources, a representative from the United Kingdom approached a U.S. government representative at that meeting and asked, "Remember that Act your Congress passed a couple years back? We'd be very interested in talking to you about a treaty like the one envisioned in that initiative".

Well, that re-opened the issue, and during the past several years, NOAA and the U.S. State Deptartment have been working to develop "guidelines" for how the Titanic should be treated, as well as an agreement that included those countries that had an interest in the Titanic. These included the U.S., Canada, the United Kingdom, and France. The (then) President of RMST was, according to my sources, consulted in the development of the guidelines.

One of the directives in the Titanic Memorial Act was to involve the public in the process of developing the guidelines. NOAA felt that it was satisfying this criteria by publishing these guidelines for comment after they were developed. My understanding is that this is a pretty typical way for the public to be "involved" with these types of initiatives. Whether it satisfied the requirements set forth by Congress will probably be decided in the lawsuit recently filed by RMST's current management team to prevent interference in their salvage rights.

Lawsuit? Of course!

This is the U.S., and where there is a difference of opinion, there are legal fees to be billed. This all blew up about the time we were recovering from celebrating the transition to the year 2000.

Seems there was a management battle at RMST. It turns out that the State Department was talking to the old RMST management team about the international agreement and guidelines. The current management appears to have been unaware of the status of the discussions about a voluntary guideline agreement that could apply to the company as they continued exploration of the Titanic site during 2000 and until legislation implementing the agreement was passed. That little surprise appears to have been sprung on RMST's current management team when someone from NOAA mentioned the new NOAA "guidelines" and suggested discussing them prior to the summer 2000 expedition.

The fact that NOAA and the State Department were talking about new "guidelines" and an international agreement that could hamper the salvage rights which had previously been handed to RMST by Judge Clarke proved to be a red flag to a bull. The bull, of course, was RMST's management, who had been working hard to sort out the fallout from the management fight, and trying to prepare for their summer 2000 expedition. In the finest tradition of government versus business disagreements, the whole issue degenerated into a legal free-for-all.

So you see, we now have a really interesting conflict shaping up between the three branches of government, a system which our forefathers hoped would keep the federal government's powers in check.

The legislative branch (Congress) has directed the Executive Branch (State Deptartment and NOAA) to develop an international agreement and guidelines that could be viewed as a conflict with the Judicial Branch (Judge Clark sitting in Admiralty).

Got it? Now back to the Wild West versus Big Brother.

From a corporate standpoint, I can understand that RMST's management team would appreciate it if "Big Brother" would just leave them alone to continue their work on the shipwreck. From my position in Odyssey, I would also like to be left alone to pursue my shipwreck projects unfettered by regulations. I know that we will do proper archaeological work and treat our sites with the respect they deserve. I believe the same ethical and scientific treatment can be expected from RMST.

We'd all love for a Judge sitting in Admiralty to give us the rights to work our shipwrecks within boundaries set only by the Judge, which are typically less restrictive, and perhaps less arbitrary, than a book of guidelines and a bureaucrat breathing down your neck. What worries us all is the potential for abuse from a cranky staff person that decides to enforce regulations the way he or she sees fit - who knows what agenda may be guiding that person?

The folks at the State Department believe that they are following the intent of Congress and that the regime they have negotiated is reasonable and follows the past practices of RMST. The issue of NOAA's involvement is a little more complicated. There are allegations that NOAA has attempted to bring some regulatory pressure to bear a little ahead of Congress' mandate. This question will likely be resolved in Judge Clarke's courtroom or by the Fourth Circuit Court of Appeals.

In hearing this case, a comment was made from the bench suggesting that perhaps the courts would not necessarily recognize the legality of Congress' Titanic Memorial Act, meaning that both the State Department and NOAA would need to step back.

One thing is certain, there is a movement in our federal government to create a regime to manage historic and archaeologically-significant shipwrecks. Is this classic "Big Brother" behavior? Considering that "Big Brother" controls so many aspects of our lives today, I suppose that it is the proper label.

The question of whether the use of regulations to control the actions of individuals for the "good" of society is the real issue. I hate the zoning ordinance that prevents me from building a treehouse in my backyard for my kids. I was recently stunned by our new watering regulations that are slowly killing my landscaping.

We feel the influence of "Big Brother" way too much - especially when it limits our own property rights.

On the other hand, the same regime keeps my neighbors barking dog inside at night so I can sleep without listening to its incessant yapping. "Big Brother" places restrictions on the jerk that would keep every undersize Snook (our favorite Florida game fish) he can catch, killing off the brooding stock. What he sees as an imposition by "Big Brother" protects the resource so that many of us can enjoy catching and eating a reasonable two Snook per outing.

I believe that many old shipwrecks should be treated as public resources. We, as businessmen, have certain property rights based on the risks we have taken to find and control that property. But both the public and the scientific community have certain rights to the knowledge from those culturally-significant shipwrecks.

I'm getting serious heat from some of the members of the "Treasure Hunting" community that feel that I'm on the side of "Big Brother" because I won't take a public stand and criticize our State Department's recent actions relating to the Titanic. On the other hand, our federal government has posed this question: If professional shipwreck explorers believe that shipwrecks should be treated with due regard for archaeology and science, why is there a problem with reasonable administrative guidelines to manage and protect the shipwreck resources?

I know that my own company, and a number of the more responsible private shipwreck exploration firms, already operate to higher scientific and archaeological standards than those proposed in some of the administrative guidelines that I have seen.

Monitoring the Issue

I don't believe we can trust everyone to do the right thing in the "Wild West," and I'm extremely wary of "Big Brother." But I do trust that the best possible solution will come from public debate over the issue.

As we watch our three branches of government duke it out over the Titanic, these issues will undoubtedly be reviewed carefully and every legal and ethical nuance explored. I recommend that everyone with an interest in shipwrecks take note as this chapter unfolds.

The State Department and NOAA will be seeking public comments on the Titanic Guidelines that were published in the Federal Register June 2, and I encourage all of you to participate in the process. If you don't get involved, don't complain about the result. UW

If you have comments or questions about search and salvage issues, email Greg Stemm or call 813-(813) 876-1776. Greg welcomes the submission of materials for his future columns on the search and salvage industry.

UnderWater Magazine is the bimonthly journal of the Association of Diving Contractors International, Inc. It is published by Doyle Publishing Company for the commercial diving, ROV, and underwater industries. Entire contents © 1993 - 1999 Doyle Publishing Company. Reproduction in whole or in part without express written permission is prohibited.

©2000 Greg Stemm

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