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Raisign the Dead: Improving the Recovery and Management of Historic Shipwrecks, 5 Ocean & Coastal L.J

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Raisign the Dead: Improving the Recovery and Management of Historic Shipwrecks, 5 Ocean & Coastal L.J Ocean and Coastal Law Journal Volume 5 | Number 2 Article 5 2000 Raisign The eD ad: Improving The Recovery And Management Of Historic Shipwrecks Jeffrey T. Scrimo University of Maine School of Law Follow this and additional works at: http://digitalcommons.mainelaw.maine.edu/oclj Recommended Citation Jeffrey T. Scrimo, Raisign The Dead: Improving The Recovery And Management Of Historic Shipwrecks, 5 Ocean & Coastal L.J. (2000). Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol5/iss2/5 This Comment is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It has been accepted for inclusion in Ocean and Coastal Law Journal by an authorized administrator of University of Maine School of Law Digital Commons. For more information, please contact [email protected]. RAISING THE DEAD: IMPROVING THE RECOVERY AND MANAGEMENT OF HISTORIC SHIPWRECKS Jeffrey T Scrimo* I. INTRODUCTION Dead men tell no tales at the bottom of the sea. For thousands of years, this truth remained unalterable; but now, the rapid development of underwater technology is prying open the once impenetrable realm of Davy Jones's locker. This technology gives us access to the seas darkest secrets, and opens new windows to our past. Indeed, what once only lingered at the edge of dreams is now a reality. The sea has stubbornly begun to yield its treasures to those brave enough to search. In recent years, enterprising adventurers have reclaimed pirates' gold,' discovered the riches of past empires,' and peered23 into the ironic serenity of disaster.3 Bringing these * University of Maine School of Law, Class of 2000. 1. Perhaps the most dream-like find of a sunken vessel was the discovery of the notorious pirate ship, the Whydah. Captained by Samuel Bellamy, the vessel, heavily laden with plundered treasure, capsized in a storm off of Cape Cod in 1717. See Commonwealth v. Maritime Underwater Surveys, Inc., 531 N.E. 2.d 549, 553 (Mass. 1988). The vessel's remains were located by Maritime Underwater Surveys, Inc. in 1982, only a mile off the coast and under only fourteen feet of water. See id. at 550. The Whydah reportedly held treasure valued in the millions, and contributed significantly to our understanding of 18th century pirate life. See generallyHank Burchard, PirateLore and Gore, WASH. POST, Apr. 2, 1999, atN31. For more on the Whydah, see The Treasuresof Expedition Whydah (visited Apr. 6,2000) <http://www.whydah.com>. 2. The most famous treasure hunter ofthe twentieth century was undoubtedly Mel Fisher. Fisher attained his fame by locating and salvaging the Nuestra Senorade Atocha in 1985. The Atocha, a member of the 1622 Spanish treasure fleet, sank in a hurricane off of Florida in 1622, carrying its full cargo of gold and jewels to the sea bottom. Fisher's recovery and salvage of the vessel led to a U.S. Supreme Court case, the enactment of the Abandoned Shipwreck Act, and the recovery of millions of dollars worth of treasure and artifacts. For more on the Atocha and Mel Fisher, see generally Mel FisherMaritime Museum (visited March 1, 2000) <http://www.melfisher.org>. 3. When Dr. Robert Ballard first located the Titanic, he saw personal items of the victims that had laid undisturbed on dark sea bottom for almost a century. See Allen Pusey, Legend of Titanic Still Looms Larger Than Life, DALLAS MORNING NEWS, Sept. 8, 1985, at 1A. 271 OCEAN AND COASTAL LAW JOURNAL [Vol. 5:271 artifacts to the light of the modem world has given a new voice to the bones of forgotten people, and has raised their stories from the dead. Unfortunately, wherever there are bones, there are sure to be scaven- gers. Gold fever, which has infected some unscrupulous treasure hunters and commercial salvors, as well as chronic under funding of archaeologists, threatens to destroy what remains of America's unfound maritime heritage. To save what remains, we must immediately improve and clarify the purpose and structure of our underwater historic resource laws, and create a workable management plan for the recovery and management of these resources. In order to preserve the knowledge that our historic shipwrecks could provide, Americans must begin to appreciate the value that these wrecks have as historic resources, and must demand that they be efficiently utilized in the best interests of all our citizens and future generations. This appreciation must be converted into laws which acknowledge and are based upon three principles: 1) that wreck sites are often also grave sites and should be treated with dignity and respect; 2) that the most important aspect of a historic wreck site is its potential to contribute to our knowledge of human history; and 3) that the public is entitled to the knowledge obtained from such wreck sites. Adherence to these principles would create laws which would mandate thorough and efficient excavation of sites, as well as full analysis and publication of the excavator's findings. To best utilize America's historic shipwreck resources, a management scheme should be established that will encourage private salvors to work with archaeologists and the government under the direction of admiralty courts. This management scheme, termed "cooperative archaeology," could be established by fine-tuning the Abandoned Shipwreck Act (ASA)4 and admiralty law, as well as further establishing a code of ethics that all commercial salvors and archaeologists would be mandated to apply when excavating historic shipwrecks. This Comment will evaluate the debate for and against traditional salvage, full cultural resource preservation, and "cooperative archaeology" as means toward the efficient utilization of historic shipwreck resources. It will also examine the current state of historical preservation law, with special emphasis on the ASA, and analyze what changes must be made to transform the current legal environment into one that will provide for improved resource recovery and management through the encouragement of cooperation between the government, salvors, and archaeologists. 4. 43 U.S.C.A. §§ 2101-2106 (West Supp. 1999). 2000] Raising the Dead A. Why PreserveHistoric and Archaeological Objects and Information? The study of history provides a culture with stories that give it meaning and direction, as well as an orientation to its own place in the sweep of human events. Maintaining a link to the past allows the members of a society to recognize who they are, study what forces have made them what they are, and understand what makes them different from other cultures.5 By preserving historic buildings and objects, we maintain our past insuch a way that our daily expectations and anticipations are influenced, and our uniqueness is assured in an age of increasing homogeneity of cultures.6 Through the medium of historic objects, history is not dead, but maintains a living ability to conjure emotions and thoughts in our daily lives. In the past, historians studied the written documents left by political leaders, the elite, and the minority of the masses with the ability and ambition to write about an event. Of course, it does not require much thought to realize that such a method leaves out a significant portion of a culture, and gives a skewed interpretation of the past. Therefore, many historians have turned to archaeology to fill in the large gaps left by the written record.7 Since the development of modem archaeological processes, archaeol- ogy has played an increasingly large role in the study of history. Archaeol- ogy contributes to historical knowledge by studying the remnants of everyday existence! To an archaeologist, the everyday actions of the masses can be read, not in diaries or official reports, but in the material footprints that they leave behind.9 Through the study oftangible objects left by a group of people, archaeologists gain an insight into the social and economic fabric of a society.0 It is recognized that the distinction between tangible and intangible cultural heritage is largely conceptual." In fact, it has been said that "there is no basic difference between the material manifestation of abstract concepts of form and function fossilized in the attributes of artifacts and the 5. See JULIAN CONRAD JUERGENSMEYER AND THOMAS ROBERTS, LAND USE PLANNING AND CONTROL LAW 575 (1998) (quoting ROBERT STIPE, WHY PRESERVE HISTORIC RESOURCES? LEGAL TECHNIQUES IN HISTORIC PRESERVATION (1972)). 6. See JUERGENSMEYER, supra note 5, at 575-76. 7. SeePETERTHROCKMORTON, THE SEAREMEMBERS: SHIPWRECKS ANDARCHAEOL- OGY FROM HOMER'S GREECE TO THE DISCOVERY OF THE TITANIC 11 (1987). 8. See id. 9. See id. 10. See ANASTASIA STRATI, THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: AN EMERGING OBJECTIVE OF THE CONTEMPORARY LAW OF THE SEA 7 (1995). 11. See id. OCEAN AND COASTAL LAW JOURNAL [Vol. 5:271 social manifestations of similar concepts ephemerally translated into social activities."' 2 In modem archaeology, it is the tangible expressions left by a past culture that provide the bridge to its intangible attributes. In fact, when studying past cultures, the material expressions that they leave are most likely the only connection to the largely illiterate masses. Because the study of history has evolved beyond the mere analysis of battles and kings, historical artifacts left by the masses have acquired unparalleled importance to the field. 3 B. PreservingHistoric Vessels One of the great expressions of past culture is the oceangoing vessel.' 4 For thousands of years, the oceangoing vessel was the ultimate manifesta- tion of pre-industrial civilized society, 5 and was the most efficient and manageable means to transport people and materials over great distances.' 6 From the Greek galley to the British ship of the line to the modem supertanker and nuclear equipped submarine, the oceangoing vessel has always connected cultures and driven world events.
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