The U.S. Courts recently ruled that Spain was the rightful owner of a half billion dollars in treasure salvaged by an American company and that the treasure must be returned to Spain. The crux of Spain’s case was that, regardless of the passage of time, it was the owner of the ship and thus the owner of everything in it. And, as a sovereign, that no one had the right to interfere with its property. If the U.S. is willing to recognize Spain’s ownership rights to a shipwreck (sunk in battle with the British in 1804) in the middle of the ocean, why shouldn’t the rights of the owners of shipwrecks sunk in U.S. waters be recognized? Those owners are people like you and me. In fact, you and I might be an heir, finder and/or salvor of some of that treasure. Insurance companies that paid off on claims, own many of the wrecks. You, your family and friends, even your retirement plan, may own stock in those companies.
The Abandoned Shipwreck Act of 1987, treats the wrecks of privately owned vessels, as though they were abandoned property and gives ownership to the states. But the truth is no one abandons their rights to gold or silver and many of the wrecks have such treasures on them, the owners of those wrecks would never have willfully abandoned their ownership rights to such wealth. That was part of Spain’s case and that certainly was a valid argument.
Under Section 2105 of the Abandoned Shipwreck Act the United States “asserts title” (seizes ownership) to “any abandoned shipwrecks” but does so without the due process guaranteed by the Fifth Amendment to the U.S. Constitution, which is part of the Bill of Rights, and is meant to protect against abuse of government authority in a legal procedure.The Fifth Amendment provides that private property shall not be taken without just compensation. The owners of these shipwrecks have not been compensated at all, and there is no provision to compensate them. That makes this act unconstitutional. As I mentioned earlier, you may be heir to the owners of one or more of those wrecks.
Article III, Section 2 of the United States Constitution grants original jurisdiction to U.S. federal courts over admiralty and maritime matters. Section 2106 of the Abandoned Shipwreck Act states: “The law of salvage and the law of finds shall not apply to abandoned shipwrecks to which section 2105 of this title applies.” Since shipwrecks are clearly an admiralty matter that is a clear taking, usurpation and assumption of the federal court’s constitutional authority.
It is my belief that the Abandoned Shipwreck Act of 1987 was a taking of power from Judicial Branch of our government (i.e. the federal court) by the Legislative Branch and giving in to the Executive Branch. If that was what was done, and there is no question that was the case, then it was unconstitutional. It effectively took privately owned property (i.e. shipwrecks) out of the hands of their owners and heirs (you an me) and transferred that ownership to the states. And, it means most shipwrecks will be lost forever because, in practice, the States severely limit commercial salvage of the wrecks.
I believe this seizure of property (i.e. the shipwrecks and their cargos) by the United States government was a violation of each of the individual owners’ Fifth Amendment rights of due process.
I am hoping you will join me in trying to repeal the Abandoned Shipwreck Act of 1987. You can help by sharing this on Facebook and on other social networks.
Signed: E. Lee Spence
Dr. E. Lee Spence, underwater archaeologist
President, Sea Research Society
VP, International Diving Institute
ADDENDUM NUMBER ONE
The Abandoned Shipwreck Act was promoted and passed for some very worthwhile purposes but that didn’t make it right. I realized the Act was unconstitutional long before its passage and I fought it (and so did a lot of others), but there didn’t seem to be a public interest at that time in defending the Constitution. It was also thought by many that the individual States would be reasonable in the issuances of salvage permits, but that has not proved to be the case, even though such permits could have required that the work would be done in accordance with standard archaeological protocols, and could have contained provisions for continued sport access to the sites.
There have been some very negative unintended consequences of the Act. Most of those have been due to the over zealous, intentional restriction and/or refusal/failure by states to issue permits for commercial salvage. Their actions/inactions have resulted in many historically and archaeologically important shipwreck sites being ignored (largely because there are so many of them and there are insufficient tax dollars to do the work as government sponsored archaeological projects). Even worse, many wreck sites have been looted. Other wrecks have been destroyed in part or in whole by natural causes, government dredging or beach nourishment projects, or bottom trawls by commercial fishing operations.
When my company, Shipwrecks Inc., had a federal admiralty claim on the wreck of the “City of Vera Cruz” off Cape Canaveral, Florida in the 1980s, we could have banned everyone from the wreck. But, we understood that wouldn’t have been right. I met with the local dive stores, clubs and charter services and assured them that they were welcome to dive on the wreck, and even take some souvenirs (such as bottles), as long as they didn’t disassemble wreckage, use dredges and/or lifting equipment.
The public can’t afford to pay for archaeology on all of the thousands of wrecks claimed under the Act. If you want to see more wrecks saved (through proper archaeological recovery, i.e. salvage, done as a business) we need to see that the various state archaeologists aren’t allowed to restrict access and just do nothing based on the absurd notion that by doing nothing they are somehow preserving the wrecks for future generations. 50 years ago, I was that future generation and I heard the same arguments then for not touching the wrecks. Lets not let another 50 years go by sitting on our butts. If the Act is repealed it will allow these wrecks to be worked in our lifetimes, create jobs, and allow all of us to benefit from them.
The problem is that the Abandoned Shipwreck Act has defined and branded virtually all shipwrecks as abandoned (unless they once belonged to a government). It does it even though 99% of such wrecks were never legally abandoned by their owners.
Just because some captain gave the order to “abandon ship” and the passengers and crew got off a sinking vessel to save their lives does not mean that the owners have abandoned their ownership rights to either the cargo or the ship. The courts have previously recognized that the mere passage of time (even centuries) doesn’t negate ownership.
In the past, it took a positive act on the part of owners to “abandon” ownership of a wrecked vessel. Such abandonment was very rarely done and, when it was, it was usually to avoid liability that might occur if another vessel ran on the wrecked vessel and/or to allow the government to remove a wreck that was a hazard to navigation.
Since the government understands that it still has an ownership interest in the cargo and vessels that it owned and lost over the past couple of centuries, why doesn’t it acknowledge and respect the rights of private citizens who have experienced similar losses?
The government is trying to pretend that any presumably privately owned wrecked vessel that can’t readily be identified is abandoned. The truth is, with adequate research and publication of the data, a great many wrecks can be identified and all of those wrecks technically have owners.
The Abandoned Shipwreck Act uses the fact that many of the wrecks are partially embedded (buried) in the sea floor as a way to claim ownership for the local sovereign (i.e. the State). But, I firmly believe, that is an absurd way to define ownership, as I have worked wrecks which became “embedded” literally within days of wrecking and I have seen other wrecks that were over a hundred years old that were still sitting completely exposed on the bottom.
The passage of time, or the embedding of a wreck in the sea floor, doesn’t affect the government’s ownership claims to their own wrecked vessels. So, why should it be any different with a privately owned vessel? Under our constitution we are really supposed to have more rights than the government, not less. That was what our bill of rights was all about.
I worked on one ship that, within a year of its sinking, had its hull completely buried in mud and sand. The vessel couldn’t be re-floated, but, I was able to salvage lots of very valuable items for the owners, reducing their losses and making a decent profit for myself.
During my career my associates and I have found a number of barges and powered vessels that were sunk in rivers . Some had been there for years, were largely buried, and they certainly looked “abandoned.” But, after identifying and locating the owners, my partners and I were able to reach salvage agreements with them. We raised the wrecks and some were not just scrapped, but were actually put back into use.
Some wrecks (even ones over a hundred years old) are repeatedly covered and uncovered by shifting sands. Would that mean that the ownership would depend on what day you visited the wreck? How much sand, mud or coral on a wreck is necessary to say its embedded in the bottom?
Each wreck is different. Different owners, different risks, and different factors involved. I say let the court decide who owns what and, if there is an owner, what the amount of the salvage award should be. If the wreck’s original owners can’t be found, then the wreck should be treated as lost property (under the long established “Law of Finds”), not as “abandoned property” that belongs to a local sovereign (State) only by a series of unreasonable definitions that only apply to private property and are only there to deny and circumvent the owners rights to due process. And we should not forget that under the “law of Finds,” the finder of lost property becomes its owner. If an owner is located, then the finder still has a claim under the “Law of Salvage.”
Under the United States Constitution, admiralty matters are specifically the jurisdiction of the Judicial Branch of our government (i.e. the federal court). The Abandoned Shipwreck Act was effectively an unconstitutional taking by the Legislative Branch of the federal court’s jurisdiction over the salvage of privately owned wrecked vessels, as the Act places those shipwrecks, which it arbitrarily and capriciously defines as abandoned, under the control of the executive branches of the individual States.
The Act was passed, but that does not make it Constitutional. I say it needs to be repealed. There are better ways to protect the public’s interest in the wrecks than by trashing our Constitution and our Civil Rights.
E Lee Spence