Buffalo Law Review

Volume 49 Number 2 Article 10

4-1-2001

Raiders of the Lost . . . Sub? The Potential for Private Claims of Ownership to Military Shipwrecks in International Waters: The Case of Japanese I-52

Stephen Paul Coolbaugh University at Buffalo School of Law (Student)

Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview

Part of the Law of the Sea Commons

Recommended Citation Stephen P. Coolbaugh, Raiders of the Lost . . . Sub? The Potential for Private Claims of Ownership to Military Shipwrecks in International Waters: The Case of Japanese Submarine I-52, 49 Buff. L. Rev. 929 (2001). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol49/iss2/10

This Comment is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. COMMENT

Raiders of the Lost... Sub? The Potential for Private Claims of Ownership to Military Shipwrecks in International Waters: The Case of Japanese Submarine 1-52

STEPHEN PAUL COOLBAUGHt

[U]p until recently, all underwater archaeological discoveries have been done in a water depth of less than 200 feet. Well 200 feet is less than four percent of the world's oceans. But this new technology of submersibles and robots can now cover ninety-seven percent of the world's oceans.... There's probably more history now preserved underwater than in all the museums of the world combined. And, there's no law governing that history. It's finders keepers.... [1lt's a free for all. It's the wild west. It's the absence of law. And, so what we're trying to do ... is to raise this issue and to sensitize people to the fact that history is down there and what's at stake.

t J.D., State University of New York at Buffalo School of Law, 2001; B.S.F.S., Edmund A. Walsh School of Foreign Service, Georgetown University, 1997. My love and deepest thanks to my parents, George and Judy, for their inspiration, encouragement, and persistence. Special thanks to Professor David A. Westbrook for his mentoring, guidance, and feedback during the writing of this Comment. Finally, my sincere appreciation to Andy Zakrocki for his commentary and advice on early drafts of this Comment. Copyright © 2001 Stephen P. Coolbaugh. 1. Interview by NOVA Online with Dr. Robert D. Ballard, President of the Institute for Exploration, Mystic, Conn., at http://www.pbs.orgwgbhlnova/ titanic/ballard.html (last visited Sept. 12, 2000) (on file with the author). Dr. Ballard is best known for locating the R.M.S. Titanic in 1985. See The JASON Project: Dr. Robert Ballard, at http://www.jasonproject.org/ballard.html (last visited Sept. 12, 2000) (on file with the author).

929 930 BUFFALO LAW REVIEW [Vol. 49

I. INTRODUCTION

A. GOING FOR THE GOLD? The world's oceans have been battlefields for centuries.2 What may be less obvious is that important maritime

2. Some of the greatest battles in naval history are remembered by simple names such as Lepanto, the Spanish Armada, Trafalgar, Tsushima, Jutland, and Midway. Cf ROBERT BALLARD & RICK ARCHBOLD, RETURN TO MIDWAY 10 (1999) ("In the whole history of naval warfare, there have been few [battles to match that of Midway]: Salamis, the defeat of the Spanish Armada, Trafalgar, Jutland."). As this note demonstrates, these battles-fought on the surface of the world's seas, oceans, channels, and straits at various points throughout nearly four centuries-have littered the depths with hundreds of warship wrecks. "Lepanto was one of the world's decisive battles." R. ERNEST DuPUY & TREVOR N. DUPuY, THE HARPER ENCYCLOPEDIA OF MILITARY HISTORY 549 (4th ed. 1993). On October 7, 1571, Don Juan of Austria led 108 Venetian galleys, six Venetian galleasses, eighty-one Spanish galleys, and thirty-two other ships into battle against Ouloudj Ali, Dey of Algiers, and 270 Turkish galleys. Id. at 547- 49. After more than three hours of confusing combat, Ali disengaged from the battle with sixty of his galleys gone aground, fifty-three sunk, and 117 captured. Id. at 548-49. "The battle marked the end of Turkish naval dominance in the eastern Mediterranean and was notable as the last major engagement ever in which galleys manned by oarsmen were deployed." ANTHONY BRUCE & WILLIAM COGAR, AN ENCYCLOPEDIA OF NAVAL HISTORY 224 (1998) (citing JACK BEECHING, THE GALLEYS AT LEPANTO (1982)). Seventeen years later, in another great sixteenth century naval battle, the English fleet defeated the vaunted Spanish Armada off the coast of England. E.g., GEOFFREY REGAN, THE GUINNESS BOOK OF DECISIVE BATTLES 99 (1992). This battle was actually "[a] running naval engagement in the English Channel between the 130 Spanish vessels of the Duke of Medina Sidonia (23,000 men and 1,500 cannon) and the English fleet (120 ships) commanded by Lord Howard of Effingham." THE DICTIONARY OF BATTLES 101 (David Chandler ed. 1987). In the end, the Armada was defeated, and the subsequent scattering of the surviving Spanish vessels thwarted the Spanish plan to invade England. See id. Challenged again in 1805, a British fleet consisting of twenty-seven ships- of-the-line defeated a combined Spanish and French fleet numbering thirty- three ships-of-the-line off the coast of Spain in the Battle of Trafalgar. See REGAN, supra, at 143. Fought with British Rear-Admiral Lord Nelson and Vice- Admiral Pierre de Villeneuve in command, "[t]he five-hour battle resulted in a resounding British victory. The French and Spaniards lost 18 vessels and 14,000 men; the British lost no ships and 1,500 men, including Horatio Nelson." THE DICTIONARY OF BATTLES, supra, at 128. The Battle of Tsushima was the "first great battle of armored battleships and the only great engagement of pre-dreadnoughts." BRUCE & COGAR, supra, at 379 (citing RICHARD HOUGH, THE FLEET THAT HAD TO DIE (1958)). On May 27-28, 1905, Admiral Zinovy Rozhestvenski led a fleet of eight battleships, eight cruisers, nine , and a number of auxiliary vessels into battle in the 2001] CLAMS TO MILITARY SHIPWRECKS 931 battles continue to rage today-battles fought between archaeologists and treasure hunters over the fate of "[1]iterally millions of ships, from prehistoric dugouts to rubber-clad German U-boats, [that] still lie submerged" deep below the oceans' surfaces.' Loosely bound by murky laws, archaeologists work to preserve and record information concerning these priceless time capsules of the deep, and treasure hunters from around the world scramble to recover for themselves any and all riches offered by the same shipwrecks.4 As a result, in the late straits between Japan and Korea against Admiral Heihachiro Togo's fleet of four battleships, eight cruisers, twenty-one destroyers, and sixty torpedo boats. See id. at 378-79; THE DICTIONARY OF BATTLES, supra, at 155. By the end of the engagement, only six Russian vessels had escaped destruction or capture. BRUCE & COGAR, supra, at 379. Japan, on the other hand, had lost only three torpedo boats. DUPUY & DuPuY, supra, at 1014. Indeed, Tsushima was "one of the most decisive sea battles in history." THE DICTIONARY OF BATTLES, supra, at 155. The in 1916 was "[tihe only major surface action between the main battle fleets of Britain and Imperial Germany in the First World War; in terms of the number of ships at sea (250), it is the largest single fleet action that has ever been fought." THE DICTIONARY OF BATTLES, supra, at 172. At the outset, "[bloth sides had high hopes of the battle-the British, in particular, expecting victory-but the results were inconclusive. The German High Seas Fleet sank more tonnage than the British , but the former was never to see action again. Id. Finally, the Battle of "Midway was one of the decisive battles of history." DuPuY & DuPUY, supra, at 1255. From June 3 through June 6, 1942, Japanese Admiral Isoroku Yamamoto and Vice-Admiral Chuichi Nagumo led at least four aircraft carriers, three battleships, two heavy cruisers, one , and twelve destroyers into battle against American Rear Admirals Frank Jack Fletcher and Raymond Spruance, and their three aircraft carriers, eight heavy cruisers, one light cruiser, and fifteen destroyers. See, e.g., BALLARD & ARCHBOLD, supra, at 32, 33, 35, 36, 37. The "two-day naval battle in the central Pacific... culminated in a crushing American victory over the Japanese." THE DICTIONARY OF BATTLES, supra, at 200. In the end, the Americans had lost one carrier, one , 132 aircraft, and 307 men. DupuY & DuPuY, supra, at 1255. The Japanese lost four carriers, one heavy cruiser, 275 planes, and 3500 men. Id. Thus, the greatest carrier battle in history "checked the Japanese advance across the Pacific, destroyed their fleet carrier forces, and gave the strategic initiative in the Pacific to the Americans." THE DICTIONARY OF BATTLES, supra, at 200. 3. Brendan I. Koerner, The Race for Riches, U.S. NEWS & WORLD REP., Oct. 4, 1999, at 45-46, availableat 1999 WL 8433708. 4. See id.; see also J. Ashley Roach, Sunken Warships and Military Aircraft, Naval Historical Center: Underwater Archaeology Papers, at http://www.history.navy.mil/branches/orgl2-7j.htm (posted Dec. 22, 1999) (on file with author) (stating that the interests of salvors, marine archaeologists, and marine historians are not necessarily compatible). Roach-who, after serving in the Judge Advocate General Corps, retired as a Captain from the 932 BUFFALO LAW REVIEW [Vol. 49 twentieth century has appropriately been deemed a "race for riches."5 Treasure hunting is by no means a novelty of the 1990s.6 In the early 1960s, treasure hunters such as Mel Fisher and Kip Wagner began recovering millions of dollars

United States Navy-now works for the Office of the Legal Adviser, United States Department of State. Id. Angus Konstam has stated that the biggest difference between commercial salvage (treasure hunting) and archaeological salvage involves the disposition of artifacts. In commercial salvage, often sunken treasure is "dispersed between investors, and sold at international auctions and to private buyers," while in archaeological salvage, recovered treasure is "kept together for future generations to study." ANGUS KONSTAM, THE HISTORY OF SHIPWRECKS 26 (1999). Yet, "[pirofessional salvors... deeply resent being called 'treasure hunters'. They prefer their activities to be described as 'cargo recovery', a highly specialised business closely connected with the world of insurance and loss adjustment." JAMES HAMILTON-PATERSON, THREE MILES DOWN 5 (1999). To highlight this distinction between the two vocations in a whimsical way, keep in mind that the famous Obtainer of Rare Artifacts, Doctor Henry Jones, Jr., has stated, "Archaeology is the search for fact, not truth. If it's truth you're interested in, Doctor Tyree's Philosophy class is right down the hall. So, forget any ideas you've got about lost cities, exotic travel, and digging up the world. We do not follow maps to buried treasure, and 'X never, ever, marks the spot." JONES AND THE LAST CRUSADE, (Paramount Pictures Corp. 1989) [hereinafter INDIANA JONES]. Yet, "in one form or another, there is an inconceivable hoard of money lying scattered about the seabeds" that will continue to tempt the treasure hunters and cause them to challenge the archaeologists. HAMILTON-PATERSON, supra, at 7. 5. Koerner, supra note 3, at 44-45. Once again on a light note, but quite applicable here, Professor Henry Jones, Sr., has stated that, "in this sort of race, there's no silver medal for finishing second." INDIANA JONES, supra note 4. 6. Indeed, treasure hunting isn't even a creation of the twentieth century. See NIGEL PICKFORD, LOST TREASURE SHIPS OF THE TWENTIETH CENTURY 8 (1999) ("The underwater archaeologist is something of a newcomer to the oceans. The traditions of the treasure hunter, by contrast, go back thousands of years."). While, as early as the seventeenth century, Spanish salvors were using diving bells to salvage shallow-water wrecks, John Lethbridge is considered one of the earliest commercial salvors. Using a self-designed individual diving suit, Lethbridge performed salvage work for the Dutch East India Company during the eighteenth century. KONSTAM, supra note 4, at 29-30; see also D.A. KOSTER, OCEAN SALVAGE 5 (1971) ("Rudimentary forms of appliance to enable a man to breathe under water were introduced into England towards the end of the seventeenth century and a primitive conception of diving dress and observation chamber combined was produced by John Lethbridge of Devon in 1715."). Yet, commercial salvage did not take off until the post- period, and the Cox and Danks Company's recovery of the German High Seas fleet. See KONSTAM, supra note 4, at 32. Jacques Cousteau's invention of the aqua-lung in 1942, however, paved the way for his exploration of classic Mediterranean wrecks in the 1950s, and George Bass's work on a shipwreck off of Turkey in 1960. See id. at 7, 8, 50. 20011 CLAIMS TO MILITARY SHIPWRECKS 933 worth of gold and silver from shallow-water wrecks of Spanish treasure galleons.7 Only recently, however, have technological innovations such as global positioning systems, side-scan sonar, magnetometers, and remote- operated vehicles become sufficiently sophisticated and affordable to make both shallow-water and deep-water treasure hunting pursuits commercially feasible and profitable for a wide range of entrepreneurs.8 Search tools have become so powerful that "[alt the present time there is hardly any object which cannot be located and explored on the sea-bed."9 As a result, "[there are no depths of the

7. KONSTAAM, supra note 4, at 116. In 1948, beachcomber Kip Wagner began recovering Spanish coins on the beach near Sebastian Inlet, . In 1964, Wagner partnered with diver Mel Fisher to find the source of the coins, the Spanish treasure fleet of 1715, and raise over $5 million in gold coins from seven wrecks. In total, the 1715 fleet produced $20 minion in treasure for Wagner and Fisher. See id. at 112, 116. Fisher went on to discover the Nuestra Sefiora de Atocha in 1985, one of two royal treasure galleons that were part of Spain's treasure fleet of 1622. Id. at 110-11. After successfully fighting a court battle against Florida that ran all the way to the Supreme Court, Fisher salvaged nearly "$400 million worth of gold, silver, and artifacts" from the wreck. Michael Browning, Does This Treasure Belong to Spain? Salvors Fight to Keep PreciousDiscoveries, PALAI BEACH POST (Florida), Aug. 7, 2000, at 1A,2000 WL 24029767. Although Fisher passed away in 1998, his son Kim Fisher continues the hunt for sunken gold and is currently focusing his efforts on a wreck site off of Vero Beach, Florida. Id. 8. See Koerner, supra note 3, at 45-46. This statement, however, does not mean that treasure hunting is a cheap or easy business. In fact, as Nigel Pickford has written, "[if profit is the overriding motive, there are much more sensible routes to making quick money." PICKFORD, supra note 6, at 9. First, the necessary equipment can cost a fortune. Remote Operating Vehicles can cost between $100,000 and nearly $2 million. Even magnetometers now cost around $16,000. Koerner, supra note 3, at 46. Second, expeditions to shipwrecks can be enormously expensive, costing up to $30,000 a day or more. In fact, the recent salvaging of three tons of gold from the S.S. CentralAmerica cost nearly $12.7 million. Brendan I. Koerner, Shipwrecked Savings, U.S. NEWS & WORLD REP. Oct. 4, 1999, at 50. Finally, even with the most recent technological breakthroughs, "[dieep-water salvage is in a class of its own and world-wide[, at least as of 1998,] there are probably only three or four companies equipped to undertake it." HAMILTON-PATERSON, supra note 4, at 5. For a detailed review of recent developments in the techniques and technology used to search for shipwrecks, see Roderick Mather, Technology and the Search for Shipwrecks, 30 J. MAR. L. & CoMi. 175 (1999), WL 30 JMARLC 175. 9. Roach, supra note 4 (citing ANASTASIA STRATI, THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: AN EMERGING OBJECTIVE OF THE CONTEMPORARY LAW OF THE SEA 344-45 (Publications on Ocean Development, A Series of Studies on the International, Legal, Institutional, and Policy Aspects of Ocean Development Vol. 23, 1995)). As many as ten years ago, the company Oceaneering was successful in finding a single cargo door that had blown off 934 BUFFALO LAW REVIEW [Vol. 49 ocean that are unavailable to anyone who wants to explore them,"0 and some of the deepest and richest shipwrecks in history are now being tapped by treasure hunters.1 One shipwreck that has appeared in the headlines recently is that of the World War II-vintage Japanese submarine 1-52 ("1-52"). At least one treasure hunter-Paul R. Tidwell"2- has set his sights on tapping this foreign warship wreck located in international waters for all that she may provide." The question is, does Tidwell have the legal right to do so?

B. Legal Obstacles, or Simply Legal Speed-Bumps? For hundreds of years, treasure hunters have operated without a conventional set of rules governing the salvage of deep-water shipwrecks. 4 Traditional thought has held that salvagers may be permitted to claim ownership rights to merchant wrecks on the high seas, but that a country

and fallen into the sea from United Air Lines flight 811. HAMILTON-PATERSON, supra note 4, at 31. 10. Koerner, supra note 3, at 46 (quoting John Lawrence, chief executive officer of the salvage firm Seahawk Deep Ocean Technology). 11. See id.; see also KONSTAM, supra note 4, at 27 ("Technological improvements in underwater search and recovery, especially in deep water, mean that wrecks that were once safe from the attentions of treasure hunters are now being located."). 12. Paul Tidwell has been described as "a maritime historian, researcher, and salvager based in Manassas, Virginia." Alexander Colhoun, Sunken WWII Sub and its Cargo of Gold, CHRISTIAN SCI. MONITOR, June 15, 2000, at 19, 2000 WL 4428861. Originally from New Orleans, Louisiana, Tidwell founded AU Holdings as a vehicle through which to search for 1-52 in 1995. Steven Girardi, Deep Divers on Quest for Japanese Gold. The Lure of History--and Gold-Led Salvagers to the Middle of the Atlantic Ocean and a Doomed Japanese Submarine, TAMPA TRIB., Oct. 18, 1999, at 1, 1999 WL 21343225; see Greg Hassell, "That's My Ship!". Businessman Sues to Claim Gold on Sunken Japanese Sub, HOUSTON CHRON., Aug. 19, 1995, at 1, 1995 WL 9399599; Priit J. Vesilind, The Last Dive of the 1-52, NATL GEOGRAPHIC, Oct. 1999, at 117. After finding the submarine, Tidwell founded Cape Verde Explorations as a vehicle through which to explore and raise 1-52 from her watery grave. See Colhoun, supra. 13. See infra Part II.B for further discussion. 14. See KONSTAMI, supra note 4, at 27 (stating that where "deep water wrecks lie in international waters, they are not subject to protection under the law"). As a result, much of the sunken treasure "lies in international waters and is therefore pretty much free to whoever fancies nibbling at its edges." HAMILTON-PATERSON, supra note 4, at 7. 2001] CLAMS TO MILITARY SHIPWRECKS 935 generally retains ownership of its sunken warships. 5 Yet no multilateral treaty currently provides for the treatment of sunken ships seaward of coastal state jurisdiction." As a result, the United States has traditionally relied on an amalgamation of customary international law, traditional maritime law, and federal law in order to resolve disputes involving shipwrecks located in international waters. New technology has allowed treasure hunters to present novel situations to U.S. courts in the hopes of securing salvage awards, 8 but late-twentieth century U.S.

15. See ENCYCLOPEDIA OF UNDERWATER AND MARITIME ARCHAEOLOGY 398 (James P. Delgado ed., 1997) [hereinafter ENCYCLOPEDIA]; Vesilind, supra note 12, at 124. 16. Roach, supra note 4 (citing UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A CO~mENTARY, para. 303, 10, at 161-62 (Nordquist et al. eds., 1989) (stating that, "beyond the 24 nautical miles, the coastal State has no particular standing under [the 1982 Law of the Sea Convention]. Its rights and duties will be governed by general international law and applicable international treaties .... Presumably, in the course of time, this incipient new branch of law will be completed by the competent international organization, above all UNESCO, and by State practice")). 17. See Memorandum accompanying letter from James H. Michel, Deputy Legal Adviser, United States Department of State, to Leonard H. Dickstein, Deputy General Counsel, United States Maritime Administration (Dec. 30, 1980), available in MARIAN NASH LEICH, 1980 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1000 (1980) [hereinafter LEICH Memorandum] (indicating that the legal experts in the United States Department of State look to customary international law, traditional maritime law, and U.S. case law for guidance in addressing issues concerning sunken warships); cf., e.g., R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir.), cert. denied, 528 U.S. 825, 120 S. Ct. 74 (1999). In R.M.S. Titanic, an ocean expedition company organizing a trip to visit the Titanic wreck, located in international waters, and one of its intended passengers asked the Fourth Circuit to overturn an injunction granted to the legal salvor of the Titanic which prevented any other party from visiting or photographing the wreck. Id. at 953-54. The Fourth Circuit affirmed in part, and reversed in part, the district court's decision, holding, inter alia, that the district court erred in granting the salvor the exclusive right to visit, observe, and photograph the shipwreck. Id. at 971. 18. Novel situations are key for the continued refinement of U.S. maritime law. After all, [t]o look to the future of admiralty law is still to rely on the past. Foundation terms such as navigable waters and vessels remain and will continue to be defined as society creates the next jet ski, sea-plane, or hovercraft. And unique issues that do not square precisely with today's definitions will continue to confront the federal courts.... And as we progress into the 21st century, the American maritime industry will continue to look to those courts for guidance and resolution of the novel and complex issues which challenge American admiralty and maritime jurisprudence. 936 BUFFALO LAW REVIEW [Vol. 49 case law has generally failed to provide a clear and consistent interpretation of U.S. maritime law regarding the rights of private salvagers vis-&-vis foreign warship wrecks in international waters. Recent decisions by U.S. courts have set a new and accommodating tone for this kind of treasure hunting activity. 9 In fact, a 1999 decision by the United States District Court for the Eastern District of Virginia in the case of Sea Hunt, Inc. v. The Unidentified, Shipwrecked Vessel or Vessels" appeared to interpret U.S. maritime law in such a way as to provide treasure hunters such as Tidwell with arguments for claiming ownership rights to both sunken foreign warship wrecks and any valuable cargo that went down with such vessels. Standing alone, Sea Hunt would likely have encouraged treasure hunters and salvors to begin pursuing foreign warship wrecks located around the globe for purely financial gain. Such activity would have definitely marked a turning point in the history and nature of treasure hunting because, up to 1999, such pro-treasure hunting decisions regarding warship wrecks had been few and far between. In July 2000, however, the United States Court of Appeals for the Fourth Circuit affirmed in part, and denied in part, the lower court's ruling in Sea Hunt. In its decision, the court emphasized the propriety of applying a strict standard when evaluating ownership claims to foreign

Hon. H. Emory Widener, Jr., The Future of Maritime Law in the Federal Courts: A Faculty Colloquium: Foreword, 31 J. MAR. L. & COM. 185, 187 (2000), available at WL 31 JMARLC 185 (internal footnote omitted). 19. See, e.g., Marex Intl, Inc. v. The Unidentified, Wrecked & Abandoned Vessel, 952 F. Supp. 825 (S.D. Ga. 1997) (holding that finder of wreck of S.S. , located eighteen miles off the coast of South Carolina, had exclusive control of the wreck, and possessed exclusive ownership rights to artifacts recovered from the wreck); cf. Fairport Intl Exploration, Inc. v. The Shipwrecked Vessel, known as the Captain Lawrence, 177 F.3d 491 (6th Cir. 1999) (holding, inter alia, that abandonment of a shipwreck may be proven by inference under admiralty law); R.M.S. Titanic, 171 F.3d 943 (holding, inter alia, that a district court could award salvage rights to a shipwreck located outside U.S. territorial waters); Moyer v. The Wrecked & Abandoned Vessel, known as the Andrea Doria, 836 F. Supp. 1099 (D.N.J. 1993) (holding that a salvage diver possessed ownership rights to mosaic friezes recovered from a commercial shipwreck located approximately 200 miles off the coast of New Jersey, and that the insurer of this wreck had abandoned the wreck). 20. 47 F. Supp. 2d 678 (E.D. Va.), mot. to amend denied by 191 F.R.D. 508 (E.D. Va. 1999), affd in part, rev'd in part, 221 F.3d 634 (4th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1079 (2001). For an in-depth discussion of this case, see infra Part IV. 2001] CLAIMS TO MILITARY SHIPWRECKS 937 warship wrecks in U.S. waters. According to one interpretation, this appellate decision clearly denigrates the persuasive value of any ownership arguments derived from the lower court's decision.2' Yet, is this result certain? At first glance, yes: on October 19, 2000, the Fourth Circuit's decision was appealed to the Supreme Court of the United States, and on February 20, 2001, the Supreme Court denied certiorari.22 On the other hand, perhaps no: notwithstanding the Court's refusal to hear the appeal, the Fourth Circuit's decision has not put an end to the debate about, or the potential for legal action concerning, the

21. Responding to the decision, Florida state archaeologist Jim Miller commented, "[tihe days of happy doubloon-hunting have been running out for some time now .... ITihe court's decision reestablishes a fundamental principle of law and sovereignty." Browning, supra note 7 (internal quotation marks omitted). Voicing agreement, Rafael Rodriguez Ponga, Director of Cultural Affairs in the Foreign Ministry in Madrid, Spain, stated that the decision is "a turning point .... It's a very important step in the recognition of the rights of Spain all over the world." Court Says FinderNot Keeper of Buried Treasure: Ruling Asserts Former Seafaring Nation's Claim to Shipwreck, Keeps out Commercial Salvors, DALLAS MORNING NEWS, Aug. 4, 2000, at 18A, 2000 WL 24849868 [hereinafter Court Says FinderNot Keeper] (internal quotation marks omitted). Finally, "David Beltran, legal adviser to the Spanish Embassy in Washington, said the victory in Virginia would have major repercussions." Id. 22. Supreme Court of the United States, Docket for 00-652, at http://www.supremecourtus.gov/docket/00-652.htm (last visited Feb. 22, 2001). On August 6, 2000, the New York Times reported that Ben Benson, president of Sea Hunt, Inc.-the treasure hunting company which found the ships at issue in Sea Hunt-was "weighing an appeal" of the case to the Supreme Court. Hubert B. Herring, Drop That Doubloon, N.Y. TmEs, Aug. 6, 2000, § 4, p. 2. Benson was displeased by the Fourth Circuit's ruling: " 'I was shocked,' Mr. Benson said of the ruling. There's no case law to support their conclusion. It's uncharted waters for the shipwreck industry as a whole.' " Court Says Finder Not Keeper, supra note 21. Yet, the chief attorney for Spain, James A. Goold, countered that " 'I'm sure a lot of treasure hunters view this decision with alarm... but they should have known it was coming.' "Id. Before actually filing an appeal with the Supreme Court, however, Benson sold Sea Hunt and the rights to explore the wrecks at issue in the case to investors Peter Knollenberg of Oklahoma, and Joseph Birch of New Hampshire. Paul Clancy, Salvor Finally Junks Long Battle to Get at Contents of Shipwrecks: Man Sells Chincoteague Exploration Company; New Owners to Continue Fight, VIRGINIAN-PILOT, Oct. 19, 2000, at B7. Although Benson's involvement in the case ended with this sale, id., Sea Hunt and its new owners continued his fight by filing a petition for a writ of certiorari with the Supreme Court on October 19, 2000. See Supreme Court of the United States, supra. Emphasizing the new owners' determination to pick up where Benson left off, Knollenberg has stated that "[there's no way we're going to let [this case] die." Clancy, Salvor Finally Junks Long Battle, supra. 938 BUFFALO LAW REVIEW [Vol. 49 rights of private salvagers under U.S. law vis-&-vis foreign warship wrecks in international waters." Instead, according to Florida admiralty attorney Edward Horan, the Fourth Circuit decision may have only "muddie[d] the waters... [because it] completely changes the way admiralty law has traditionally viewed an abandoned vessel."24 Will courts in subsequent cases-including the United States Supreme Court-see the recognition of private ownership rights to sunken foreign warships and their cargoes as consistent with the traditions of admiralty law? Or, as in Sea Hunt, will notions of principal and custom demand that courts reject subsequent claims based on arguments favoring private ownership rights? With these questions in mind, Part III of this Comment will discern and develop the United States' traditional approach to ownership and salvage rights issues. Part IV will highlight and explain developments in U.S. maritime law that bolster or redefine this traditional approach. Part V will articulate and explore arguments through which Tidwell might seek to convince a district court to award him ownership rights to 1-52. Finally, Part VI will comment on the legal, policy, and real-world implications of a district court's acceptance of such arguments. To begin the adventure, however, Part II will recount the story of 1-52, and explain Tidwell's involvement with this vessel.25

23. New questions created by the Fourth Circuit decision "will become of increasing importance as sophisticated salvage devices probe the bottom of the seas." Jack Kilpatrick, Who Owns "Abandoned"Ships?, DESERET NEWS, Dec. 4, 2000, at A15. Thus, as Jim Miller comments, this decision "is just one more stage in the never-ending saga of legal complications about shipwrecks." Browning, supra note 7. 24. Browning, supra note 7 (internal quotation marks omitted). Taffi Fisher- Abt, daughter of treasure hunting pioneer Mel Fisher and of the Mel Fisher Museum in Sebastian, Florida, was quick to agree with Horan, stating, before the Supreme Court appeal was filed, that" 'I hope Ben Benson fights [the Fourth Circuit's decision].... I hope he appeals it all the way to the Supreme Court. It's kind of a tragedy.' " Id. Even Benson, who is no longer involved in the case, has stated that the Fourth Circuit's decision "really is a pretty abrupt turnaround to 300 years of traditional admiralty law." Sonja Barisic, Finders Keepers on Shipwrecks? CourtSays No, SEATTLE TIMEs, Oct. 22, 2000, at A17. 25. To some readers, it may appear strange to have a speculative narrative at this point in the Comment. Yet, it is crucial to set forth the complete story of Paul Tidwell's discovery of 1-52 before beginning any examination of the most 2001] CLAIMS TO MILITARY SHIPWRECKS 939

II. THE STORY OF 1-52

A. Operation:Marco Polo 11 May 15, 1944 must have been a day of mixed emotion for Kameo Uno, Commanding Officer of Japanese Submarine Momi."6 On the maiden voyage of the submarine27 -- officially designated 1-52 by the Imperial Japanese Navy 28-Uno, his crew of ninety-five, and fourteen passengers"9 had crossed the Indian Ocean without any

important issues. The reasons for this have been voiced-although specifically in the context of writing appellate briefs-by Judge Widener, Jr., Circuit Judge on the United States Court of Appeals for the Fourth Circuit: An ordinary panel in my Court of Appeals, for instance, will have an average of 35 years experience after law school. So it is most unlikely that in the 105 years of experience one of the judges has not been exposed in practice or on the bench to the [key legal] points [of the case] .... But none of them know anything about the facts of the case .... It is of extraordinary importance that your statement of facts state in a chronological, narrative form... all of the facts necessary to decide your case, especially including all of the facts necessary to support the result you have espoused. Widener, Jr., supra note 18, at 187 n.1. 26. See PICKFORD, supra note 6, at 147; Vesilind, supra note 12, at 118. Momi, the code-name given to 1-52 by the Japanese Embassy in Berlin, means "evergreen" in Japanese. Id. at 129. Author Clay Blair indicates that, in a similar vein, the Germans first designated this submarine U-Tanne---"fir tree" in German-and later changed the designation to F6hre-"pine tree" in German. CLAY BLAIR, HITLER'S U-BOAT WAR: THE HUNTED, 1942-1945 539 n.* (2000). 27. Girardi, supra note 12; see Vesilind, supra note 12, at 118. 28. See PICKFORD, supra note 6, at 147. This particular boat, however, was not the first Japanese submarine to bear the designation "1-52." As part of a proposed fleet of six, a Kaidai Type 2 submarine was completed in Kure Naval Yard, Japan, on May 20, 1925, and designated "1-52" by the Imperial Japanese Navy. See HANSGEORG JENTSCHURA ET AL., WARSHIPS OF THE IMPERIAL JAPANESE NAVY, 1869-1945, at 169 (Antony Preston & J.D. Brown trans., 1977); DAVID MILLER, OF THE WORLD 109 (1991). The other proposed submarines were never completed due to the imposition of the Washington Naval Treaty of 1922. MILLER, supra, at 109. Seventeen years later, this boat was re-numbered "1-152" on May 20, 1942, paving the way for construction and designation of the new "1-52." See JENTSCHURA ET. AL., supra, at 169. 29. Vesilind, supra note 12, at 118. Uncertainty does exist, however, as to the exact number on board the 1-52. One Newsweek article and Clay Blair's work on Hitler's U-boats agree with National Geographic's figure of 109 men. See BLAIR, supra note 26, at 566; Connie Leslie, The Treasure of the 1-52, NEWSWEEK, July 31, 1995, at 64, 1995 WL 14497188. Yet, the Tampa Tribune puts the proper figure at 112, Girardi, supra note 12, while Nigel Pickford's 940 BUFFALO LAW REVIEW [Vol. 49

contact with Allied forces.3" Finally rounding the Cape of Good Hope, however, the 1-52 was entering the Allied- dominated Atlantic Ocean;3' thus, the most difficult and dangerous part of 1-52's secret mission to Nazi Germany- code-named Marco Polo 113 2 -remained. Uno and 1-52 proceeded as ordered, plotting a northwesterly course toward a point in the middle of nowhere, nearly 870 nautical miles due west of the Cape Verde Islands,3 for a rendezvous with German U-boat 530 on June 22 . By the spring of 1944, the eventual outcome of World War II was no longer much in doubt. Although the Axis Powers had made great territorial gains, the tide of the war had already turned against Japan in the Pacific Theater, beginning with the Battle of Midway in early June 1942, and continuing through the American assault on the Marshall Islands in January 1944."5 The Germans were beginning to lose ground in places like Leningrad, Poland,

book-published by the National Geographic Society-only provides that "a handpicked crew of 93," along with "a small group of elite passengers" joined Captain Uno on this voyage. PICKFORD, supra note 6, at 147-148. 30. See Girardi, supra note 12; Vesilind, supra note 12, at 118. 31. See NIGEL PICKFORD, THE ATLAS OF SHIPWRECKS AND TREASURE 116 (1994); Vesilind, supra note 12, at 118; see also Vanora Bennett, Japanese, Americans Argue over Who Gets Undersea Treasure, SALT LAKE TRIB., July 30, 1995, at D4, 1995 WL 3149459 (reporting that "Allied ships controlled the surface of the Atlantic Ocean by 1944"). 32. Ben Macintyre, Americans Track Down Hirohito Treasure Sub, TIMES (London), July 19, 1995, 1995 WL 7684865. While Macintyre indicates that "Marco Polo II" referred only to 1-52's specific mission to France in 1944, Clay Blair offers the competing explanation that this phrase referred to Adolf Hitler's gift of a new U-boat, U-1224, to Hideki Tojo in 1944. See BLAIR, supra note 26, at 538; infra note 51. The true meaning of the code phrase, however, is not critical for this story. 33. See, e.g., Vesilind, supra note 12, at 117. The destination was actually almost mid-way between Africa and South America. Instead of using nautical miles, some reports concerning the submarine's position put this point 1200 statute miles from the Cape Verde Islands. See Mark Guidera, High-tech Hunters Close in on Lost Sub, BALT. SUN, July 23, 1995, at 1B, 1995 WL 2454893; Macintyre, supra note 32. 34. See PICKFORD, LOST TREASURE SHIPS, supra note 6, at 149; Girardi, supra note 12; Vesilind, supra note 12, at 118, 119. 35. BALLARD & ARCHBOLD, supra note 2, at 8 (indicating that the book has been dedicated by Ballard "[tlo the brave U.S. fliers and sailors who sacrificed their lives and turned the tide of war in the Pacific during the historic battle of Midway, June 4, 1942"); see Pacific 1944, University of San Diego History Department, at http://history.acusd.edu/genAVW2Timeline/Pacific06a.html (last revised Apr. 25, 1999) (on file with the author) (stating that the attack on the Marshall Islands began on January 29, 1944). 2001] CLAIMS TO MILITARY SHIPWRECKS 941 and Italy.36 The Axis war machine was showing signs of fatigue: the Germans were experiencing a shortage of raw materials such as rubber, wolfram (tungsten), and tin needed to build arms,"7 and the Japanese began to suffer battle losses due in large part to superior American technology.38 In order to keep pressing their operations in both the Pacific and European Theaters, the Axis Powers had commenced a marine exchange program-code-named Yanagi by the Japanese-under which Germany traded new weapons technology to Japan for shipments of raw materials from Southeast Asia. As a result, the Imperial

36. See WALTER J. BOYNE, CLASH OF TITANS: WORLD WAR II AT SEA 199 (1995); World War 2 Timeline, The History Place, at http://www.historyplace.com/worldwar2/timeline/ww2time.htm (last visited Aug. 23, 2000) (on file with the author) (stating: (1) January 27, 1944, Leningrad relieved after 900-day siege; (2) January 6, 1944, Soviet troops advance into Poland; and (3) Early 1944, continued Allied success in Italy). 37. PicKFoRD, THE ATLAS OF SHIPWRECKS, supra note 31, at 116; PICKFORD, LOST TREASURE SHIPS, supra note 6, at 148. 38. See Submarines in the , University of San Diego History Department, at http'//history.acusd.edu/gen/WW2Timeline/subpac.html (last revised Apr. 6, 1999) (on file with the author) (explaining that American submarine forces began to experience great successes in 1944 due to the development of the new electric Mark 18 torpedo, the new acoustic Mark 27 sonar torpedo, new five inch deck guns, the "ping-less" fathometer, the periscope with built-in radar, and short-range FM sonar mines). 39. CARL BOYD & AKIHIKO YOSHIDA, THE JAPANESE SUBMARINE FORCE AND WORLD WAR II 127 (1995); see Vesilind, supra note 12, at 118; Bennett, supra note 31 (giving an overview of the secretive exchange program between Adolf itler and Emperor Hirohito). As Dr. Carl Boyd, military historian at Old Dominion University, has stated, at this point in the war, "Japan was desperate for German technology .... [aind the Germans were desperate for raw materials." William J. Broad, Hunter Finds Treasure-Filled, Sunken WWII Japanese Sub, PLAIN DEALER (Cleveland), Aug. 8, 1995, at 10E, 1995 WL 7124182. Up to 1942, Yanagi operations "were carried out by surface transport vessels; however, by early 1943 the losses of Axis surface runners became so severe that the Germans, with the advice of the Japanese ambassador in Berlin, decided to inaugurate submarine blockade-running operations." BOYD & YOSHIDA, supra, at 127. Typically in this trade, alloy steel, bottled mercury, optical glass, industrial diamonds, ball bearings, and electronic gear were shipped to Japan, while tin, rubber, quinine, opium, and molybdenum were received by Germany. HAMILTON-PATERSON, supra note 4, at 57. Carl Boyd and Akihiko Yoshida agree in part, indicating that the British Admiralty determined in 1942 that, "[i]f these plans succeed, German's [sic] principal deficiencies, in particular, rubber, tin, wolfram, hemp, hides and vegetables oils [sic] will be largely made good by Japan. The latter will obtain in return chemical, specialised machinery, prototypes of naval and military material blueprints and instructions for plant and processes and expert technicians." BOYD & YOSHIDA, supra, at 127 (citation omitted). 942 BUFFALO LAW REVIEW [Vol. 49 Japanese Navy ordered Uno to deliver a shipment of raw materials to Lorient, France, and return with German technology and German-trained Japanese technicians that would help Japan continue40 its fight against the Allied Powers in the Pacific. Uno had some reason to be confident of his chances for success on this mission. 1-52 was one of the maiden versions of C(3) submarines in the Japanese fleet,4' having been

40. See Vesilind, supra note 12, at 118; see also US Team with Russian Technology Finds Gold-Laden Japanese Submarine 51 Years After Sinking, Russ. EXPRESS-PERESTROIKA: ExEcUTIvE BRIEFING, Oct. 9, 1995, 1995 WL 7948422 (stating that "1-52 set sail for Europe in March 1944 carrying... quantities of tin, molybdenum, tungsten and rubber desperately needed by the resource-starved German war machine. In return, 14 Japanese technicians on board were to be trained in the latest German military know-how"). It was not unusual for the Japanese to utilize their long-range, cargo-carrying submarines for such missions. In fact, "U.S. submarines did distinguish themselves in the same clandestine supply and evacuation role into which Japanese subs were forced later in the war." BOYNE, supra note 36, at 157. Yet this trip was not the first such mission for Japan-I-8 had made the first successful voyage from Japan to Brest, France, and back in 1943. See BOYD & YOSHIDA, supra note 39, at 127-28; cf. PICKFORD, THE ATLAS OF SHIPWRECKS, supra note 31, at 116 (indicating that 1-29 made the first successful trip from Japan to Lorient in 1943). Attempts by the Japanese to duplicate I-8's success, however, met with failure. As Blair concisely details, [t]he Japanese U-cruiser 1-29 (German code designation "U-Kiefer"), which departed Japan on December 17, 1943, arrived at Bordeaux [sic] on March 11 with a cargo of rubber, wolfram, and two tons of gold bullion and twenty-five senior Japanese liaison officers. She sailed for Japan on April 16, with a cargo of the latest German radar and radar detectors and radar jammers, Bolde, ten Enigma machines, medicine, and so on. She embarked twelve officers and eight students for the homeward trip. She reached Penang but while en route to Japan, she was sunk on July 26, near the island of Luzon, by the American submarine Sawfish. BLAIR, supra note 26, at 539 n.*. 41. JANE'S POCKET BOOK OF SUBMARINE DEVELOPMENT 175 (John E. Moore ed., 1976) (indicating that 1-52 was one of three C(3) class submarines built, and that forty-two additional C(3)s were subsequently canceled by the Imperial Japanese Navy). This fact is not surprising given that 126 of Japan's 190 total submarines were built during the war. BOYNE, supra note 36, at 329; see also MILLER, supra note 28, at 99 ("On 7 December 1941, the day of the attack on Pearl Harbor, 62 submarines were operational [for the Imperial Japanese Navy]."). See generally id. (indicating that the Imperial Japanese Navy had "three classes of Type C attack submarines ...[including] the slightly modified C3/C4 class (three boats). One C2 and one C3 surrendered in August 1945, all nine others being lost during the war"); Japanese Submarines, at http://vww.skypoint.com/members/jbp/ss.htm (last visited Aug. 23, 2000) (on file with the author) (giving the specifications of the C(3) type submarine). 2001] CLAIMS TO MILITARY SHIPWRECKS 943 completed only three months earlier in Kure Naval Yard, just outside Hiroshima.42 The 356.6-foot long, 2600-ton submarine had a range of 27,000 nautical miles, could dive to 330 feet, could make 6.5 knots submerged, and could carry nineteen torpedoes in addition to her deck guns.43 Of all her specifications, however, arguably the most important to the Japanese Imperial High Command for this Yanagi mission was 1-52's ability to carry nearly 300 tons of cargo to Europe and back.' 1-52's capacity was therefore sufficient to hold the Germany-bound 228 tons of molybdenum, tin, and tungsten, fifty-four tons of rubber, three tons of quinine, and almost three tons of opium taken on by the submarine at her only port of call, Singapore, in late March. 5 Yet, these supplies were not the submarine's only cargo: 1-52 also carried a forty-nine box shipment from the Bank of Japan in Osaka-a shipment loaded last- minute under heavy guard before 1-52 left Kure Harbor. 6

42. See JENTSCHURA ET AL., supra note 28, at 178 (stating that 1-52 was completed on December 18, 1943); PIcKFoRD, THE ATLAS OF SHIPWRECKS, supra note 31, at 116 (stating that 1-52 was completed on December 18, 1943); Vesilind, supra note 12, at 118 (stating that 1-52 was completed at Kure Naval Yard in 1943). 43. See BLAIR, supra note 26, at 566; PIcKFORD, THE ATLAS OF SHIPWRECKS, supra note 31, at 116; PICKFORD, LOST TREASURE Smips, supra note 6, at 147; cf JANES' POCKET BOOK, supra note 41, at 175 (indicating that C(3) class submarines generally: (1) measured 358.5 feet by thirty feet by 17.5 feet; (2) displaced 2560 tons surfaced, 3560 tons dived; (3) operated with a range of 21,000 miles at sixteen knots surfaced, or thirty-six hours at three knots dived; (4) possessed a diving depth limit of 330 feet; (5) made 17.5 knots surfaced, 6.5 knots dived; (6) carried nineteen to twenty torpedoes for six twenty-one-inch torpedo tubes; and (7) carried one 5.5-inch and two twenty-five-millimeter deck guns). By comparison, standard I-class submarines could make eight knots submerged, but only had a range of 14,000 miles. BOYNE, supra note 36, at 329. 44. See Vesilind, supra note 12, at 118; see also BOYD & YOSHIDA, supra note 39, at 131 (revealing that, in 1944, the Japanese issued a secret communiqu6 emphasizing that 1-52 was prepared to carry 270 tons of cargo on her trip to Germany). 45. Macintyre, supra note 32; Vesilind, supra note 12, at 118; cf BOYD & YOSHIDA, supra note 39, at 130 (stating that 1-52 "sortied from Singapore on 23 April 1944. It had a cargo of rubber in bales; quantities of wolfram, molybdenum, and quinine"). Once again, however, minor discrepancies exist as to the mass of the resources taken onboard. Vesilind states that 1-52 held 2.88 tons of opium in addition to the rubber and quinine, Vesilind, supra note 12, at 118, while Pickford reports that the submarine carried a combined 230 tons of wolfram (tungsten), molybdenum, and tin, five tons of quinine, and no opium. PICKFORD, LOST TREASURE SHIPS, supra note 6, at 148. 46. PICKFORD, LOST TREASURE SHIPS, supra note 6, at 148; see, e.g., Vesilind, supra note 12, at 117. 944 BUFFALO LAW REVIEW [Vol. 49 Uno's mission and 1-52's cargo, however, were no secret to the Allies. Having broken the Japanese diplomatic cipher 4 (designated PURPLE) by late 1940, ' and a key German cipher (designated ENIGMA) by 1944,48 the United States was able to pinpoint the location of all Axis submarines and decipher transmissions concerning their cargoes and passengers. 49 American intelligence had in fact tracked 1-52 since her Singapore departure on April 23, and had determined that 1-52 was carrying, in addition to its other Yanagi cargo, two tons of gold destined for the Japanese Embassy in Berlin."0 It was therefore a priority for the to sink 1-52 before her arrival in France." Uno and 1-52 reached the rendezvous point of 15'N, 40'W on June 23, only one day late.52 As planned, Uno surfaced 1-52 at dusk alongside U-530.5 The U-boat

47. See DAvID KAHN, THE CODEBREAKERS 25 (1973); Vesilind, supra note 12, at 118. 48. DAviD KAHN, SEIZING THE ENIGMA (1991). 49. See Vesilind, supra note 12, at 118, 119; see also BOYD & YOSMiDA, supra note 39, at 131 (indicating that Allied intelligence knew by 1944 that "Germany and Japan have made strenuous efforts to transport strategic materials, technical information and technical personnel between Europe and Asia by the use of blockade running submarines") (citation omitted). 50. See Vesilind, supra note 12, at 117, 118, 119. 51. PICKFORD, LOST TREASURE SHIPS, supra note 6, at 150. The U.S. Navys desire to sink 1-52 can also be inferred from the Navy's course of conduct regarding another Axis submarine, U-1224, or what Blair has referred to as "Marco Polo I7." U-1224, redesignated RO-501 prior to departure, and commanded by German officer Georg Preuss, sailed from Kiel on March 30[, 1944] with a Japanese crew. Acting on information from Allied codebreakers, a hunter-killer group composed of [the 'jeep" carrier] Bogue and five new destroyer escorts searched for U-1224 west of the Cape Verde Islands. At dusk on May 13, the destroyer escort Francis M. Robinson, commanded by John E. Johansen, got a sonar contact and attacked with depth charges and Hedgehogs. These apparently destroyed U-1224. No trace of her or Preuss or her Japanese crew were ever found. BLAIR, supra note 26, at 538-39; see also MILLER, supra note 28, at 101 (indicating that RO-501, an ex-German Type IXC submarine was lost during delivery to a foreign country during the war). 52. PICKFORD, LOST TREASURE SHIPS, supra note 6, at 149; see also BOYD & YOSHIDA, supra note 39, at 131 (stating that a German radio message instructed 1-52 to rendezvous at 15°N, 40°W at 21:15 G.M.T. on June 22). U.S. Navy logs place this rendezvous point more precisely at 15.160N, 39.55°W. Guidera, supra note 33; see also PICKFORD, THE ATLAS OF SHIPWRECKS, supra note 31, at 117. 53. PICKFORD, LOST TREASURE SHIPS, supra note 6, at 149; Vesilind, supra note 12, at 119. U-530 was a type IXC40 U-boat commanded by Kurt Lange. 2001] CLAIMS TO MILITARY SHIPWRECKS 945 transferred a pilot, two radiomen, and a wooden box of new radar equipment to 1-52 in order to help the Japanese safely navigate the Bay of Biscay on their voyage to Lorient.54 Its mission completed, U-530 quickly submerged and slipped away from the rendezvous point.55 Uno ordered that 1-52 remain on the surface, however, in order to finish recharging her batteries for the next leg of her underwater journey.56 Suddenly, a flare lit up the dark night sky and sea, bathing the conning tower and deck of 1-52 in light for all to see-all, including the American Avenger TBM torpedo plane which had dropped the flare, and now roared overhead5 7 in the night sky, intent on sinking the enemy ship. As 1-52 began to dive, the Avenger circled for another pass over 1-52, and dropped two Mark 54 depth bombs toward the submarine. Before 1-52 could slip cleanly beneath the surface, both depth bombs exploded within approximately seventy-five feet of the submarine, 9 the blasts tearing fifteen yards out of her hull along and directly forward of the conning tower on the starboard

BLAIR, supra note 26, at 781. She had most recently sailed on May 22, and would not return to port again until October 1. Id. 54. See PICKFORD, LOST TREASURE SHIPS, supra note 6, at 149; Vesilind, supra note 12, at 119; cf Broad, supra note 39 (reporting that the Germans transferred food, fuel, two technicians, and a radar detector "to help the Japanese submarine evade enemy planes as she neared Europe"). 55. See Vesilind, supra note 12, at 119. In fact, U-530 continued on from this meeting for a regular patrol "to the western Atlantic near Trinidad and southward along the 'bauxite route,' " sinking no ships before reaching port. BLAIR, supra note 26, at 567. 56. Vesilind, supra note 12, at 122; see Broad, supra note 39 (stating that I- 52 "traveled the usual way, submerged during the day and surfaced at night, charging batteries"); cf Bennett, supra note 31 (reporting that it was typical of 1-52 to travel underwater during the day, and then surface at night to recharge her batteries). 57. See PICKFORD, LOST TREASURE SHIPS, supra note 6, at 150. Blair adds that there were actually two Avengers, piloted by A.L. Hirsbrunner and Jesse D. Taylor, originally in the skies above 1-52 that night. BLAIR, supra note 26, at 567. 58. PICKFORD, LOST TREASURE SHIPS, supra note 6, at 150; Vesilind, supra note 12, at 124; see also Anne Gearan, The Salvage Effort's Next JapaneseSub's Burial Ground Secret Since '44, RIcmioND TmIES-DISPATCH, Jan. 21, 1996, at C6, 1996 WL 2288201 (reporting that "[tihe huge Japanese submarine dived, struggling for cover in the Atlantic depths as an American torpedo bomber wheeled above and locked in for the kill"). 59. PIcKFORD, LOST TREASURE SmiPS, supra note 6, at 150. 946 BUFFALO LAW REVIEW [Vol. 49 side.6 ° Despite this crippling blow, 1-52 made her dive beneath the surface and out of the sight of the Avenger,61 Uno most likely ordering flank speed and evasive maneuvers to take the submarine out of harm's way. Denied the actual submarine to target, the Avenger nonetheless circled once more, first dropping a sonar buoy, and then hurling a Mark 24 acoustic torpedo toward the boil of white water created by the diving submarine. 2 The sonar buoy detailed the subsequent underwater race between the Avenger's main weapon and the fleeing 1-52, reporting the submarine's propeller noise as the torpedo dove through the dark depths. It is most likely that Uno and his crew were still struggling nearly three minutes later to regain control of the submarine and stem major flooding caused by the depth bombs when the torpedo slammed into 1-52's starboard side just forward of her propellers.' The violent explosion ripped a fatal, gaping hole in both her inner and outer hulls, spilling some of the precious cargo into the deep.6" Seconds later, her bulkheads collapsing,66 and her fate revealed only to the sonar buoys through sounds much like the crackling and crunching of a crushed tin can,6" the mysterious vessel began what would

60. See Vesilind, supra note 12, at 120-22, 124-27, 132. 61. See PICKFORD, LOST TREASURE SHIPS, supra note 6, at 150; see also Broad, supra note 39 (reporting that the submarine successfully dove to avoid the ongoing attack). 62. PICKFORD, LOST TREASURE SHIPS, supra note 6, at 150; Vesilind, supra note 12, at 124; cf. Broad, supra note 39 (stating that the Avenger "dropped flares and two 500-pound bombs and watched in dismay as the submarine desperately sought to dive, kicking up white water and successfully evading the attack"). 63. See PICKFORD, LOST TREASURE SHIPS, supra note 6, at 150; Macintyre, supra note 32 (reporting that the sonar buoys dropped by the Avenger "picked up the sound of the fleeing submarine, followed by an acoustic torpedo"); Broad, supra note 39 (reporting that the crew of the Avenger "tracked the submarine, the chu-chu-chu of her propellers clearly audible"). 64. See Vesilind, supra note 12, at 124, 126-27. 65. See id. at 124, 128, 132. Some of the cargo even bobbed to the surface, along with a rubber sandal, Philippine mahogany, black silk fishing line, and human flesh, where it was recovered by the crews of the U.S.S. Bogue and U.S.S. Janssen. PICKFORD, THE ATLAS OF SHIPWRECKS, supra note 31, at 117; see also Letter from James D. Markham, Columbus, Ohio, to Forum, National Geographic, reprinted in Forum, NATL GEOGRAPHIC, Feb. 2000 (stating that his brother, John (Buddy) L. Markham, Jr., a crewman on the U.S.S. Bogue, recovered a piece of rubber from the wreckage of 1-52). 66. Vesilind, supra note 12, at 124. 67. BLAIR, supra note 26, at 567; PICIKORD, LOST TREASURE SHIPS, supra 2001] CLAIMS TO MILITARY SHIPWRECKS 947 be an hours-long plunge, taking Uno, her crew and passengers, and 146 tightly-packed gold bars nearly 17,190 feet away from humanity, into the depths and eternity of the Atlantic Ocean.68

B. The Wreck of 1-52 That is, until May 2, 1995, when the ill-fated 1-52 was once again spotted by Americans in the middle of the Atlantic Ocean.69 This time, it wasn't the United States Navy combing the surface with aircraft, but a private team of Americans and Russians, led by salvager Paul Tidwell " searching the depths with side-scan sonar that found 1-52. 8 Short on time and resources, Tidwell's team was only able to obtain photographs of the wreck before having to

note 26, at 150; see also Doug Clark, Lawyer Dove into Search for Missing Sub, SPOKESMAN REV., Mar. 11, 1999, at B1, 1999 WL 6919782 (reporting that "[1listening equipment inside one of the Avengers recorded the fatal explosion as the monster sub sank to its doom"). 68. See Vesilind, supra note 12, at 117 (indicating that Tidwell planned to find the wreck of 1-52 and the forty-nine boxes of gold strewn around the wreck, approximately 17,190 feet under the surface of the Atlantic Ocean). 69. See Clark, supra note 67; ef. M. June Harris, Who Owns the Pot of Gold at the End of the Rainbow? A Review of the Impact of Cultural Property on Finders and Salvage Laws, 14 ARIZ. J. INTL & Comp. L. 223, 233 (1997) (indicating that in July 1995, Paul Tidwell discovered the remains of the second-largest submarine in the Japanese Navy in the Atlantic Ocean) (citing both Ben Macintyre's and Vanora Bennett's articles). 70. Guidera, supra note 33 (explaining that, in order to "explore the ocean floor [in search of 1-52], Meridian [Sciences, a company hired by Tidwell,] used a vintage Russian version of side-scan sonar, a device widely used in oceanographic research, Navy surveillance and offshore oil exploration"); US Team with Russian Technology, supra note 40 ("Mr. Tidwell's team used an advanced Russian research ship, the Yuzhmorgeologiya, and powerful Soviet- built sonar and underwater cameras-once top-secret-to hunt for the wreck after painstakingly calculating its approximate position from previously secret naval records."); see BLAIR, supra note 26, at 567 (explaining that Tidwell and his team used "state-of-the-art search gear," including Russian remote-control sonars and cameras to find 1-52). James Hamilton-Paterson has indicated that, although the research vessel utilized by Tidwell and his Russian team did not have submersibles aboard during this expedition, "it did have first-rate sonar and ROV imaging equipment." HAMILTON-PATERSON, supra note 4, at 291. As to the location and condition of the submarine, Hamilton-Paterson indicates that "the submarine hadn't imploded as [some] had asserted it would. It was practically intact but for a gaping hole where the Mk. 24 mine [sic] had struck, sitting upright on the bottom in an area of smooth sediment next to a small escarpment." Id. 948 BUFFALO LAW REVIEW [Vol. 49 abandon the initial expedition.7' Encouraged by these results, Tidwell spent the next three years planning with business partner Guy Zajonc and obtaining financing from lawyer James Philippone for a return trip to survey the entire wreck and salvage the gold.72 In November 1998, Tidwell and his team returned to the wreck of the 1-52, using then-state-of-the-art manned Russian submersibles to search for the missing gold both in the debris field and around the hull of the submarine."' Tidwell and Philippone were understandably frustrated when, after nearly a month of dives, the team had recovered only empty metal boxes, tin ingots, opium, raw rubber, and various personal items; the gold was nowhere to be found outside the wreck.74 Once again low on money and resources, Tidwell and his team were forced to leave the 1-52 wreck site without the gold.7" The disappointing ending of Tidwell's second expedition marks yet another complicated chapter in the story of 1-52, and raises difficult but important questions for the Americans. From the beginning, Tidwell and his team have

71. See BLAIR, supra note 26, at 567; Vesilind, supra note 12, at 127; see also HAMILTON-PATERSON, supra note 4, at 291 (stating that, with their equipment, Tidwell and the team "apparently took some good pictures of the Japanese craft"). 72. See Clark, supra note 67; Vesilind, supra note 12, at 127. Some newspaper reports indicated that this planning included a novel scheme to raise the submarine by pumping foam into the submarine, but this scheme has not yet been carried out. HAMILTON-PATERSON, supra note 4, at 293. 73. See HAMmTON-PATERSON, supra note 4, at 297 (describing a New York Times article detailing this expedition); PICKFORD, LOST TREASURE SHIPS, supra note 6, at 154. 74. See Vesilind, supra note 12, at 130, 132 (describing how the ship became "awash in acrimony and shouting matches erupt[ed]" after dives to the submarine failed to produce the sought-after gold). This acrimony has also been noted by Hamilton-Paterson, who, after viewing the National Broadcasting Company documentary made by the National Geographic Society to accompany National Geographic's article on the submarine, commented that, [w]hen in full view of journalists and cameras Mr. Philippone elbowed aside the man who had actually found the 1-52 and tried to elbow aside Anatoly Sagalevitch [the operator of the MIR submersibles] in order to direct the [R/V Akademik Mstislav] Keldysh's salvage operations, causing shouting matches to break out all over the ship, there was a sense of ironic confirmation. Men and gold truly are a poisonous combination. HAMILTON-PATERSON, supra note 4, at 300. 75. See Vesilind, supra note 12, at 132-33. 2001] CLAIMS TO MILITARY SHIPWRECKS 949 been intent on claiming the gold for themselves.76 Specifically, Tidwell has indicated that his goals are "to recover the gold and perhaps raise the submarine."77 Yet, shortly after Tidwell's discovery of the submarine in 1995, Japan declared that 1-52 and her cargo remained the property of Japan." Tidwell then announced that he and his team were "not claiming ownership of the submarine"79 in what was possibly a calculated attempt to persuade the Japanese Government to relinquish claim to at least the lost gold." Tidwell also promised that, if he were ever to raise 1-52 from the sea floor, he would "return the

76. 1-52's gold has, in fact, been the major draw for the top men involved with the wreck expeditions. Tidwell has indicated that he became obsessed with 1-52 shortly after finding out that she carried two tons of gold. See Vesilind, supra note 12, at 124. Financier James Phillippone has given all indications that he signed on to the expedition specifically because Tidwell told him that he was going to "go for the gold." Id. at 127-29. And, although Tidwell commented after the disappointing 1998 expedition that "[iun a way I'm glad we didn't recover any gold, because it would tarnish the trip," id. at 133, Tidwell has been as eager as ever to find the gold, commenting that the Japanese and he are "forming a consortium of companies. We may cut away the conning tower and bring it up." Id. at 135. 77. David Arnold, Finders Keepers, BOSTON GLOBE, June 1, 1998, at C11, 1998 WL 9136074. Tidwell's company, Cape Verde Explorations, Ltd., operates a website on the Internet. Cape Verde Explorations, Ltd., Cape Verde Explorations Home Page, at http://www.capeverdeexplorations.com (last visited Aug. 17, 2000) (on file with the author). A page on this site states: Out to Sea: December 12, 1998, Tekoa, Washington: Although we haven't received any official news updates from Cape Verde Explorations, I think it is safe to inform you that they are currently out to sea working on the 1-52 project. The nature of their current expedition and the timing of it has prevented them from being able to keep you informed. You will be seeing some important news updates on this site soon. Cape Verde Explorations, Ltd., CVE Newswire, at http'/ www.capeverdeexplorations.com/newswire.html (last visited Aug. 17, 2000) (on file with the author). Yet, it is important to recognize that, somewhat mysteriously, this portion of the site has not been updated for over twenty months. See id. Most recently, however, Tidwell has publicly stated that he hopes to begin salvage of the submarine in January 2001. Colhoun, supra note 12, at 19. 78. Japan Can't Verify WWII Sub Discovery, SEATTLE TIMES, July 20, 1995, at A16, 1995 WL 5033086; see Harris, supra note 69, at 233 ("Both Japan and Tidwell assert ownership of the gold."); cf. Leslie, supra note 29 (giving a softer voice to Japan's position in stating only that the Japanese government has announced that it might object to a salvage effort) (emphasis added). 79. Gearan, supra note 58. 80. See Macintyre, supra note 32 (stating that Tidwell "believes the Japanese Government will not lay claim to the salvaged gold"). 950 BUFFALO LAW REVIEW [Vol. 49 submarine to Japan, and any artefacts [sic] belonging to those who went down with it, after exhibiting the vessel.""1 The Japanese do not seem eager to cut such a deal with Tidwell. As reporter Vanora Bennett has indicated, Japan does not want just the submarine, "[iut wants the gold, too."82 In response to Tidwell's promises, the Japanese Finance Ministry's (Overseas) National Property Division reiterated in 1995 that, "[als a general rule, the vessel and its cargo are definitely the property of the government of Japan.58 Even more recently, an anonymous Japanese embassy official has stated that, despite recent silence on the issue, Japan will "strongly object at the proper time" should Tidwell move to salvage the gold.84 Given such pronouncements, Tidwell would seemingly be unable to penetrate the wreck of 1-52 in search of the gold, or take title to the gold if found, absent permission from the Japanese Government, and would most likely be unable to continue5 salvage of even portions of the submarine and her cargo.8 At this point, Tidwell must decide to either abandon the already costly treasure hunt, or to thumb his nose at the Japanese, and plan and commence a third expedition to penetrate the wreck of 1-52 in order to recover the gold.86 Additionally, aside from whatever legal problems the Japanese government's assertions may pose, Tidwell faces technical problems. Although the two tons of gold are presumably still there at the site of the wreck, they are now

81. Id. 82. Bennett, supra note 31. 83. Vanora Bennett, Submarine's Gold Cargo Sought; Researcher Locates Japanese Vessel Sunk in Atlantic in WWII, WASH. POST, Aug. 17, 1995, at A22, 1995 WL 9257493. 84. Arnold, supra note 77. 85. Customary international law supports the proposition that "no person or state may salvage or attempt to salvage sunken state vessels or aircraft, or their associated artefacts [sic], wherever located, without the express permission of the sovereign flag state, whether or not they are a war grave," and that "sunken state vessels and aircraft containing crew remains are also entitled to special respect as war graves and must not be disturbed without the explicit permission of the sovereign state." ENCYCLOPEDIA, supra note 15, at 399. 86. See Vesilind, supra note 12, at 135; cf. HAIvIILTON-PATERSON, supra note 4, at 297-98 (stating that Vesilind's National Geographic article and the accompanying National Geographic Television documentary, SUBMIARI'E 1-52: SEARCH FOR WORLD WAR II GOLD (NGT, Inc. 2000), suggest convincing reasons why a further attempt at salvage would be quite difficult). 2001] CLAIMS TO MILITARY SHIPWRECKS 951 believed to be packed tightly within the intact portion of the submarine's steel hull, teasingly out of simple reach." Given the apparently firm position of the Japanese regarding Tidwell's offer to seek only the gold, and the seeming necessity to cut into the submarine to recover any gold, if Tidwell chooses to conduct a third expedition, he might have to revoke his previous promises and seek ownership in court of the entire submarine in order to guarantee his right to recover the gold. Should he do so, Tidwell's chances for success would likely be determined by a United States district court. Therefore, it is important to understand exactly how recent case developments are impacting traditional U.S. admiralty law.

III. THE TRADITIONAL APPROACH OF THE LAW

A. TraditionalUnited States Maritime Law 8 and Jurisdiction Modern United States admiralty law is derived from "the well-known and well-developed venerable law of the sea,) 9 which has governed shipping for at least 3000 years.9 According to this general maritime law of nations,

87. Vesilind, supra note 12, at 135; see PICKFORD, LOST TREASURE SHIPS, supra note 6, at 154; see also Clark, supra note 67 (presuming that the gold is still somewhere in the intact steel hull of 1-52). 88. Generally under U.S. law, the terms "admiralty law" and "maritime law" are used as virtual synonyms. See O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36 (1942). In Great Lakes, a deckhand working on shore and injured by a counterweight asked the Supreme Court to reverse a decision by the Seventh Circuit holding that, inter alia, plaintiff could not recover under the Jones Act for an injury not occurring on navigable waters. Id. at 37-38. The Supreme Court reversed the Seventh Circuit decision. Id. at 44. 89. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 960 (4th Cir.), cert. denied, 528 U.S. 825, 120 S.Ct. 74 (1999) (quoting United States v. W.M. Webb, Inc., 397 U.S. 179, 191 (1970)). For a review of R.M.S. Titanic, see supra note 17. In Webb, the Supreme Court reviewed a Fifth Circuit decision affirming that captains and crews of commercial fishing boats are not employees for the purposes of the Federal Insurance Contributions Act or the Federal Unemployment Tax Act. Webb, 397 U.S. at 180-82. The Supreme Court reversed the Fifth Circuit decision, remanding the case for further proceedings. Id. at 194. 90. As Judge Widener observed: Admiralty law especially lends itself to reliance on the past, and the authorities seem to be generally agreed that it dates back to the Mediterranean and Middle Eastern nations' laws, such as the Code of 952 BUFFALO LAW REVIEW [Vol. 49 two doctrinal structures govern the recovery of shipwrecks or other sunken property: the law of salvage,9 and the law of finds." United States courts are venues in which salvors may, based on either doctrine, bring either ownership or salvage actions involving sunken property or shipwrecks. Under article III, section two, clause one of the United States Constitution, "[the judicial power of federal courts extends9 3 to all Cases of admiralty and maritime Jurisdiction."

Hammurabi between 2000 and 1600 B.C. and the later Laws of Oleron, which proved to be the foundation for English, and thus our, law. Widener, Jr., supra note 18, at 185-86; see also R.M.S. Titanic, 171 F.3d at 960 ("Nations have applied this body of maritime law for 3,000 years or more. Although it would add little to recount the full history here, we note that codifications of the maritime law have been preserved from ancient Rhodes (900 B.C.E.), Rome (Justinian's Corpus Juris Civilis) (533 C.E.), City of Trani (Italy) (1063), England (the Law of Oleron) (1189), the Hanse Towns or Hanseatic League (1597), and France (1681), all articulating similar principles. And they all constitute a part of the continuing maritime tradition of the law of nations- the jus gentium."); Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 512 (1828) ("These cases [in admiralty] are as old as navigation itself; and the law admiralty and maritime, as it has existed for ages, is applied by our Courts to the cases as they arise."); see generally 29 JAMEs WMI. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 701.0111] (Matthew Bender 3d ed. 1997) (describing the history of maritime law). In American, bales of cotton salvaged from a ship wrecked off of Florida were both dispersed as part of a salvage award and fraudulently sold. The insurer of the cotton asked the Supreme Court to review a Circuit Court decision awarding ownership of the cotton to one of the purchasers. American, 26 U.S. (1 Pet.) at 513-14. The Supreme Court affirmed the Circuit Court with costs. Id. at 546. Yet, U.S. law is not permanently constrained by the corpus of the maritime law of nations as it existed at the time of the birth of the United States: "[i]t cannot be supposed that the framers of the Constitution contemplated that the [maritime] law should forever remain unalterable." The Lottawanna, 88 U.S. (21 Wall.) 558, 577 (1874). Instead, U.S. maritime law represents the general maritime law of nations as adopted, altered, qualified, and supplemented by the courts and legislature of the United States. See MOORE ET AL., supra, § 701.02[1]. 91. See Rachel J. Lin, Comment, Salvage Rights and Intellectual Property: Are Copyright and Trademark Rights Included in the Salvage Rights to the R.M.S. Titanic?, 23 TUL. MAR. L.J. 483, 485 (1999); see also 3A MARTIN J. NORRIS, BENEDICT ON ADMIRALTY §§ 5-6, at 1-7 to 1-10 (1997) (discussing the law of salvage). For the distinction between these two doctrinal structures, see infra notes 118-25 and accompanying text. 92. See Lin, supra note 91, at 487; see also 2 THOMAs J. SCHOENBAU\I, ADIHRALTY AND MARITIME LAW § 16-7, at 335 (2d ed. 1994) (discussing the law of finds). For the distinction between these two doctrinal structures, see infra notes 118-25 and accompanying text. 93. v. Deep Sea Research, Inc., 523 U.S. 491, 501 (1998) (holding that the Eleventh Amendment does not bar the jurisdiction of a federal court 2001] CLAIMS TO MILITARY SHIPWRECKS 953 Giving breadth to this clause, Congress conferred upon the district courts "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction."94 Yet, due to the clause's arguable indefiniteness, the boundaries of this jurisdictional grant have not been fully ascertained. 95 Instead, where the district courts' "exercise of admiralty subject matter jurisdiction has never been limited to maritime causes arising solely in the United States territorial waters... maritime causes arising from matters on the high seas anywhere in the world have traditionally been brought to [American] courts of admiralty."96 It is now widely accepted that "[t]he salvage of items from navigable waters, both within and without the United States, constitutes the core of the exclusive admiralty and maritime jurisdiction of United States District Courts." 7 over an in rem admiralty action where California does not have actual possession of a ship which sank off its coast in 1865) (citing U.S. CONST. art. III, § 2, cl. 1) (internal quotation marks omitted). After all, despite a bit of circular reasoning, the Supreme Court has held that, "[tihe admiralty [court] is the only court where such a question [of salvage] can be tried; for what other court, but a court of admiralty has jurisdiction to try a question of salvage?" Houseman v. O'Hara, 40 U.S. 40, 48 (1841). 94. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 76-77. This grant of authority has evolved over the years into its present form, contained in 28 U.S.C. § 1333, which provides that the district courts have jurisdiction over "[amny civil case of admiralty or maritime jurisdiction," and "all proceedings for the condemnation of property taken as prize." 28 U.S.C. § 1333 (1988). 95. MOORE ETAL., supra note 90, § 701.02[1]. 96. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 961 (4th Cir.) (citing, inter alia, Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218-19 (1986) (indicating that "admiralty jurisdiction is appropriately invoked... under traditional principles [where an] accident occurred on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity")), cert. denied, 528 U.S. 825, 120 S. Ct. 74 (1999); see Marex Int'l, Inc. v. The Unidentified, Wrecked & Abandoned Vessel, 952 F. Supp. 825, 828 (S.D. Ga. 1997) ("[Cllaims, such as the one in the present case, arising out of salvage operations in international waters beyond the territorial limits of the United States are within the admiralty jurisdiction of the federal courts ....") (citing, inter alia, Treasure Salvors, Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel, 640 F.2d 560, 566 (5th Cir. 1981) and Moyer v. The Wrecked & Abandoned Vessel, known as Andrea Doria, 836 F. Supp. 1099, 1104 (D.N.J. 1993) ("[Cllaims arising out of salvage operations at sea beyond the territorial limits of the United States are within the admiralty jurisdiction of the federal courts.") (citing MDM Salvage, Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel, 631 F. Supp. 308, 311 (S.D. Fla. 1986)). 97. Intl Aircraft Recovery, L.L.C. v. The Unidentified, Wrecked & Abandoned Aircraft, 54 F. Supp. 2d 1172, 1177 (S.D. Fla. 1999), order rev'd, No. 99-13117, 2000 WL 977396 (11th Cir. July 17, 2000); see also Treasure Salvors, 640 F.2d at 567 ("Since the admiralty jurisdiction of United States courts is not 954 BUFFALO LAW REVIEW [Vol. 49 The process and procedure by which salvors may bring either ownership or salvage claims involving sunken property or shipwrecks is well-delineated in U.S. maritime law.9" When a salvor commences such an action pursuant to U.S. law, no individual is personally named as a defendant, and thus the court does not exercise in personam jurisdiction.99 Instead, such "causes of action [are] begun and carried on as proceedings in rem... [and] a vessel or thing is itself treated as the offender and made the defendant by name or description.""0 Yet, despite receiving

limited by the nationality of the ships, sailors or seas involved and since the principles of the law of salvage are part of... the international maritime law, United States courts have long adjudicated salvage claims involving foreign vessels, alien salvors and salvage operations occurring on the high seas."); GRANT GILMoRE & CHARLES BLACK, JR., THE LAW OF ADMIRALTY § 1-19, at 51-52 (2d ed. 1975) (stating that "Itihe courts of the United States take jurisdiction... of suits on maritime claims arising out of transactions and occurrences anywhere in the world") (footnotes omitted); David J. Bederman, The Future of Maritime Law in the Federal Courts: A Faculty Colloquium: Admiralty Jurisdiction,31 J. MAR. L. & COM. 189, 212-13 (2000), WL 31 JMARLC 189. ("I believe that U.S. admiralty courts should continue this trend of extending jurisdiction to events, transactions, or occurrences outside U.S. waters ....A good illustration of such a positive development is the practice of U.S. courts to exercise a form of in rem jurisdiction over salvage of sunken shipwrecks located beyond the territorial remit of U.S. courts. In such cases, the question to be considered by an admiralty court is not whether the subject matter of such a claim is substantially maritime in character (a salvage claim obviously satisfies that requirement), but, rather, whether a U.S. admiralty court is the proper forum for the resolution of disputes arising from the proper management and recovery of property lost at sea. U.S. admiralty courts have had no qualms in exercising jurisdiction over a collision on the high seas (even as between two vessels, neither of which had U.S. registry or U.S. beneficial ownership)... so long as either in rem or in personam principles were properly satisfied. So, too, with claims that sound in quasi-contract or salvage or other sui generis categories, U.S. courts may properly exercise admiralty jurisdiction."). Id. (internal footnote omitted). 98. See FED. R. CIV. P. SuPP. R. A & C. Moore's Federal Practice also provides that "[tihe largest class of admiralty cases in which non-statutory injunctive relief is granted... involves injunctive relief for or against salvors seeking to protect rights to sunken wrecks or treasure." MOORE ET AL., supra note 90, § 704.09[2]. For a brief, non-legal overview of this process in the context of Tommy Thompson's search for S.S. Central America, see GARY KINDER, SHIP OF GOLD IN THE DEEP BLUE SEA 309 (1998). 99. See R.M.S. Titanic, 171 F.3d at 957 (explaining the difference between in personam and in rem jurisdiction, and demonstrating that salvage actions involve in rem jurisdiction). 100. Madruga v. Superior Court of Cal., 346 U.S. 556, 560 (1954) (holding that a state court, and not federal courts, had jurisdiction over a cause of action by majority owners of a vessel against the minority owner where the action was not an in rem admiralty action); see generally FED. R. Civ. P. SUPP. R. C. As 2001] CLAIMS TO MILITARY SHIPWRECKS 955 a broad grant of authority pursuant to 28 U.S.C. § 1333, the district courts do not "have the power to command that any person or any ship appear before a United States court sitting in admiralty."' ' Even in rem proceedings are "grounded on the principle that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory."0 2 As a result, the Supreme Court has emphasized that a court may only exercise in rem jurisdiction if "the property in dispute is generally in the possession of the Court, or of persons bound to produce it, or its equivalent." 3 Only then does the court "have

Moore's Federal Practice indicates, "[piroceedings in rem, which in effect make the 'offending res' the defendant, are derived from the ancient maritime codes promulgated in the coastal towns of the eastern Mediterranean before the rise of the Roman Empire and, like maritime attachment and garnishment, were part of the general maritime law adopted by the United States." MOORE ET AL., supra note 90, § 702.01. Often this in rem notion is justified by the personification theory, which holds that vessels are legal entities that can be sued in court. See, e.g., Bargecarib Inc. v. Offshore Supply Ships, Inc., 168 F.3d 227 (5th Cir. 1999) (explaining that a charterer could proceed directly against a vessel where the charterer had a valid maritime lien). For example, Gary Kinder explains that Tommy Thompson's attorney sued the wreck of the S.S. CentralAmerica in order to bring a claim under admiralty law. KINDER, supra note 98, at 312. The in rem action being discussed here, however, is not the same as a quasi in rem action. A quasi in rem action is different in both theory and substance from the traditional in rem action. Unlike in rem actions, quasi in rem actions involve making an in personam claim against the res by arresting, attaching, or garnishing the res in order to establish a court's jurisdiction over the defendant res owner, not just the res. Additionally, the defendant res is used as a fund to pay for any subsequent judicial decree. See MOORE ET AL., supra note 90, § 705.0411] (citing, inter alia, Limonium Mar., S.A. v. Mizushima Marinera, S.A., 961 F. Supp. 600 (S.D.N.Y. 1997)). As a result, in rem actions are made pursuant to Supplemental Rule C of the Federal Rules of Civil Procedure, while quasi in rem actions are governed by Supplemental Rule B. See FED. R. CIV. P. Supp. R. B & C. 101. R.M.S. Titanic, 171 F.3d at 961 (emphasis added). 102. Id. at 957. (quoting Pennoyer v. Neff, 95 U.S. 714, 722 (1877)) (internal quotation marks omitted). In fact, absence of the property in question from the court's jurisdiction might preclude exercise of jurisdiction over the property. See, e.g., Associated Metals & Minerals Corp. v. S.S. Portoria, 484 F.2d 460 (5th Cir. 1973) (holding, inter alia, that where proper process against a vessel was not issued, the vessel was not arrested). 103. California v. Deep Sea Research, Inc., 523 U.S. 491, 502 (1998) (quoting United States v. Bright, 24 F. Cas. 1232, 1236 (C.C. Pa. 1809) (No. 14,647)); see also The Brig Ann, 13 U.S. (9 Cranch) 289 (1815) (holding that in order for a court to exercise in rem jurisdiction over a ship or cargo, the ship or cargo must be within the district in which the in rem complaint is filed). As explained by the Fourth Circuit, if the court is unable to exercise in rem jurisdiction for this 956 BUFFALO LAW REVIEW [Vol. 49 jurisdiction over the property so as to be able to adjudicate rights in it that are binding against the world."' °4 The "possession requirement" referred to by the Supreme Court for invocation of a court's in rem jurisdiction may be relaxed somewhat depending on the nature of the sunken property or shipwreck at the heart of an ownership or salvage claim. Focusing specifically on ownership or salvage claims to entire shipwrecks located outside the territorial waters of the United States, it is almost always physically impossible for a salvor to bring an entire shipwreck within the possession of the court." Given this fact, the Supreme Court has held that, "[w]hile the res must be in custodia legis (in the court's possession), this possession may be actual or constructive."' 6 Constructive possession refers to less than physical presence of the wreck in the court's territory;0 7 thus "constructive in rem arrest allows an admiralty court to properly administer the

reason, the court may not "vest rights in property outside of its territory, such as in a shipwreck lying in international waters." R.M.S. Titanic, 171 F.3d at 964. Therefore, the key for salvors bringing a claim under the law of finds is to trigger the court's in rem jurisdiction by bringing the shipwreck within the territorial bounds of the court. 104. R.M.S. Titanic, 171 F.3d at 964 (citing Darlak v. Columbus-Am. Discovery Group, Inc. 59 F.3d 20, 22-23 (4th Cir. 1995)); ef Zych v. The Lady Elgin, 960 F.2d 665, 670 (7th Cir. 1992) (holding that, where an in rem injunction is granted, "[tihe district court accordingly may determine the rights of Zych versus the world with the exception of Illinois"). 105. See Moyer v. The Wrecked & Abandoned Vessel, known as Andrea Doria, 836 F. Supp. 1099, 1104 (D.N.J. 1993) ("[Ilt is often a practical impossibility to bring the vessel and all its contents into the territorial confines of the court.") (citing Treasure Salvors, Inc. v. The Unidentified, Wrecked, & Abandoned Sailing Vessel, 640 F.2d 560, 566 (5th Cir. 1981)); cf.; R.M.S. Titanic, Inc. v. Haver, 9 F. Supp. 2d 624, 632 (E.D. Va. 1998) ("Practicalities sometimes dictate the impossibility of bringing the entire ship into a judicial district at any one time for salvage adjudication.") (citing, inter alia, Marex Int'l, Inc. v. Unidentified, Wrecked & Abandoned Vessel, 952 F. Supp. 825, 828 (S.D. Ga. 1997)) (emphasis added), affd in part, rev'd in part, 171 F.3d 943 (4th Cir.), cert. denied, 528 U.S. 825, 120 S. Ct. 74 (1999). 106. R.M.S. Titanic, 171 F.3d at 964 (citing The Brig Ann, 13 U.S. (9 Cranch) at 291) (emphasis added). Moore's Federal Practice concurs, stating that "[t]aking possession of the res often does not require physical impoundment; posting of a custodial keeper can be sufficient to place the res in custodia legis." MOORE ET AL., supra note 90, § 704.02[1] [c] (citing Yokohama Specie Bank, Ltd. v. Chengting T. Wang, 113 F.2d 329 (9th Cir. 1940), for comparison where, in Yokohama, an arrest of cargo was declared insufficient where the cargo was not placed in the custody or control of the marshal's representatives). 107. See R.M.S. Titanic, 171 F.3d at 964. 2001] CLAIMS TO MILITARY SHIPWRECKS 957 salvage of a wreck and protect the salvor in possession when it is impossible to bring the entire wreck into the judicial district at a single point in time."' Under U.S. law, a salvor can satisfy a court's requirement of constructive possession, prove his salvor's status, and perfect a maritime lien against the shipwreck by presenting only parts of the vessel or its cargo to the district court.0 9 Additionally, given the potential for protestations by foreign owners of such wrecks, the Supreme Court appears to have ruled that the district court's in rem jurisdiction-triggered by constructive possession-extends to maritime actions where a foreign government asserts ownership, but not actual possession, of the in rem defendant."0

108. R.M.S. Titanic, 9 F. Supp. 2d at 633 (emphasis added); see also David J. Sharpe, The Future of Maritime Law in the Federal Courts: A Faculty Colloquium:Admiralty Procedure, 31 J. MAR. L. & COM. 217, 237 (2000), WL 31 JMARLC 217 ("Present-day cases at the margins of arrest might drive personification to the Supreme Court. For example, the in rem doctrine has been stretched to enable plaintiffs to arrest maritime property that in fact is not within the district... because the property is in international waters... (emphasis added) (footnote omitted). 109. See R.M.S. Titanic, 9 F. Supp. 2d at 633; see also John P. Fry, Note, The Treasure Below: Jurisdiction over Salving Operations in International Waters, 88 COLUMi. L. REV. 863, 864 (1988) (discussing constructive possession where at least part of the res is within the court's jurisdiction). In fact, the Supreme Court has implied that a district court may exercise in rem jurisdiction over a shipwreck when only china, a fiul bottle of champagne, and a brass spike from the wreck are presented to the court. See California v. Deep Sea Research, Inc., 523 U.S. 491, 496 (1998). As a result, Tommy Thompson's group was able to obtain recovery rights to the wreck of S.S. CentralAmerica by presenting only a lump of coal from the ship to the United States District Court for the Eastern District of Virginia. See KINDER, supra note 98, at 360. 110. See The Pesaro, 255 U.S. 216, 217 (1921) (reversing a district court decree releasing an Italian steamship from arrest where the Italian Ambassador asserted that "the ship was owned by the Italian government and at the time of the arrest was in its possession, and therefore was not subject to the court's process."); see also Deep Sea Research, 523 U.S. at 506-07 ("Although the Eleventh Amendment bars federal jurisdiction over general title disputes relating to state property interests, it does not necessarily follow that it applies to in rem admiralty actions, or that in such actions, federal courts may not exercise jurisdiction over property that the State does not actually possess."); Intl Aircraft Recovery, L.L.C. v. The Unidentified, Wrecked, & Abandoned Aircraft, 54 F. Supp. 2d 1172, 1178 (S.D. Fla. 1999) ("Based upon last year's Supreme Court decision governing all In Rem admiralty actions involving In Rem Defendants in which an official of a state, the federal government or foreign government asserts ownership, without actual possession, this Court now holds that the salvage services advanced by the Plaintiff/Salvor International Aircraft Recovery, LLC., and its predecessors in interest, constitute a valid maritime lien against the In Rem Defendant. The Intervenor 958 BUFFALO LAW REVIEW [Vol. 49 In light of this understanding of U.S. maritime law, it appears that Tidwell and his team would be able to at least file either a salvage or ownership claim to 1-52 and her golden cargo in any United States district court. First, 1-52 is properly classified as a wreck located in international waters, and therefore does not present any conflict-of- jurisdiction problems. The wreck of 1-52 is located on the slope of the Mid-Atlantic Ridge, nearly 1250 miles from the continental shelf of South America, nearly 1500 miles from the continental shelf of Africa, and more than 1750 miles from the nearest American territory, Puerto Rico."' Although all nations are entitled to exclusive sovereignty over all navigable waters up to twelve nautical miles beyond their coasts,"' and may exercise exclusive control

United States admits that it is not in possession or control of the In Rem Defendant. This Court holds that the Plaintiffs federal salvage rights and remedies are in full force and effect .... "). order rev'd, No. 99-13117, 2000 WL 977396 (11th Cir. July 17, 2000). At this point, it is important to note a potential conflict in the law. Pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1332(a), 1391(f), 1441(d), 1602-1611 (1988), vessels and other property owned by foreign governments are generally immune from the service of in rem process. See, e.g., Coastal Cargo Co. v. M/V Gustav Sule, 942 F. Supp. 1082 (E.D. La. 1996) (holding that, inter alia, Estonian corporation-wholly owned by the Estonian government--chartering a vessel from a Cypriot corporation owned by it could invoke protection of the Foreign Sovereign Immunities Act where a stevedore filed an in rem complaint against the vessel); see MOORE ET AL., supra note 90, § 704.02[1] [b] [iii]. Even if such property is of a military character and used for commercial purposes, it is still generally immune. See 28 U.S.C. § 1611(b)(2) (1988) ("Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune from attachment and execution, if... (2) the property is, or is intended to be, used in connection with a military activity and (A) is of a military character, or (B) is under the control of a military authority or defense agency."). This Comment will not address this conflict further, but will assume that the textual statement is an accurate reflection of the law. It is also important to also emphasize that such salvors also do not have to worry about any ownership assertions by the United States government pursuant to the Abandoned Shipwreck Act of 1987 (ASA), 43 U.S.C. §§ 2101-2106 (1988), unless the property or shipwreck at issue is found within territory of the United States. See generally Deep Sea Research, 523 U.S. 491 (discussing the impact of the ASA on a shipwreck found within the territory of California). 111. See The World: Physical Map (National Geographic Society, 1998). 112. Cf United States v. California, 332 U.S. 19, 33-34, supplemented, 332 U.S. 804 (1947) ("That the political agencies of this nation both claim and exercise broad domination and control over our three-mile marginal belt is now a settled fact. And this assertion of national dominion over the three-mile belt is binding upon this Court.") (citations omitted). In California,the United States asked the Supreme Court to declare that the United States is the owner of the 2001] CLAIMS TO MILITARY SHIPWRECKS 959 over economic matters-involving, inter alia, the seabed- up to 200 nautical miles beyond their coasts,"' where the Republic of Cape Verde is the nearest nation to the wreck at over 800 miles away, the wreck of 1-52 is not located within any state-owned or controlled sea zone. As no nation may claim sovereignty over the high seas,14 no court but a court of admiralty may exercise jurisdiction over the wreck of 1-52.2" Therefore, a salvage or ownership claim involving 1-52 is indeed the type of case that could be heard by a district court. Second, by bringing a few salvaged items before a district court and demonstrating that he is the salvor in possession of the wreck, Tidwell would most likely be able to give a district court constructive possession of the wreck, and trigger the in rem jurisdiction of the court."6 Finally, submerged lands and resources underlying the territorial waters of the United States off California, and to enjoin California from trespassing on such rights by executing leases with other parties regarding the resources contained in the territorial waters and sea floor. Id. at 22-23. The Supreme Court found for the United States. See id. at 41. In 1988, President Ronald Reagan extended the U.S. claim of a territorial sea from three miles to twelve miles. See Proclamation No. 5928, Territorial Sea of the United States of America, 54 Fed. Reg. 777 (Dec. 27, 1988), 1988 WL 311392. 113. See Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 21 I.L.M. 1261, 1280, arts. 56(1), 57. 114. United States v. Louisiana, 363 U.S. 1, 33-34 (1960), supplemented, 382 U.S. 288 (1965) ("The high seas, as distinguished from inland waters, are generally conceded by modern nations to be subject to the exclusive sovereignty of no single nation."). In Louisiana, the United States asked the Supreme Court to declare that the United States is the exclusive owner of the submerged lands and resources underlying the territorial waters of the United States in the Gulf of Mexico more than three miles from the coasts of Louisiana, Texas, Mississippi, Alabama, and Florida. Id. at 5. The Supreme Court held, inter alia, that the United States is the owner of the submerged lands and resources underlying the territorial waters of the United States in the Gulf of Mexico more than three miles from the coast of Louisiana, Mississippi, and Alabama. See id. at 83. 115. Cf. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 965 (4th Cir.) ("Any extension of jurisdiction into the high seas by a nation must be 'subject to the consent of other nations.' See Louisiana, 363 U.S. at 34 .... We do, however, acknowledge that the law of nations sanctions limited extraterritorial exercises of jurisdiction. See, e.g., Louisiana, 363 U.S. at 34 n.60 .... "), cert. denied, 528 U.S. 825, 120 S. Ct. 74 (1999). 116. The PlainDealer reported in 1995 that Tidwell and his team "recovered some of the submarine's remains from an adjacent debris field, enabling Tidwell to make an international claim to its salvage rights." Broad, supra note 39. Although Tidwell publicly returned three shoes salvaged from 1-52 to relatives of the sailors lost on the submarine in Kure, Japan, in 1999, Tidwell probably retains sufficient debris and cargo recovered from the sub during his 1998 960 BUFFALO LAW REVIEW [Vol. 49 because Japan clearly does not have physical possession of 1-52 at this point, even if the Japanese government were to assert an ownership claim to the wreck,"7 a district court would still be able to invoke its in rem jurisdiction over 1-52 in order to address any potential claim by Tidwell. As a result, it appears that Tidwell and his team would likely be able to satisfy the threshold requirements of U.S. maritime law in terms of presenting a justiciable claim against 1-52 to a United States district court.

B. Traditional United States Maritime Law, the Law of Finds, and the Law of Salvage Convincing a court that it has jurisdiction over the wreck of 1-52, however, would be only half the battle for Tidwell. Generally, under United States maritime law, once the procedural and threshold requirements of the law have been met regarding a salvage or ownership action, and a court is satisfied that it has appropriate in rem jurisdiction in the action, the court must decide to apply either the law of salvage or the law of finds (one to the exclusion of the other), and then appropriately resolve all claims to the sunken property under the chosen doctrine."' Under the law of salvage, a person who acts both voluntarily and successfully (either wholly or in part) to recover property in peril at sea is entitled to assert a salvage claim against such property in hopes of receiving a salvage award from a

expedition to present to a district court. See Vesiind, supra note 12, at 130, 134- 35. Whereas, of this date, TidweU has conducted two expeditions to the wreck of 1-52, and his team appears to be the only one publicly involved in the active salvage of 1-52, a court will most likely find Tidwell to be the salvor in possession of the wreck. 117. Author Nigel Pickford has indicated in his work, Lost Treasure Ships of the 20th Century, that the Japanese government has made an official claim against the wreck of 1-52. PICKFORD, LOST TREASURE SHIPs, supra note 6, at 154. 118. See R.M.S. Titanic, 171 F.3d at 961 ("The general maritime law of nations includes a law of finds and a law of salvage, and courts of admiralty apply one to the exclusion of the other, as appropriate, to resolve claims in property discovered and recovered in navigable waters by those other than the property's owners or those taking through them."); Marex Int'l, Inc. v. The Unidentified, Wrecked, & Abandoned Vessel, 952 F. Supp. 825, 828 (S.D. Ga. 1997) ("Admiralty courts have used two theories of law when adjudicating title and determining salvage rights to shipwrecked vessels."). In Marex, the court applied the law of finds. Id. at 829. 2001] CLAIMS TO MILITARY SHIPWRECKS 961 court.119 On the other hand, under the law of finds, where the salvor recovers a significant quantity of property that has been abandoned by its owners, 2° the salvor may assert an ownership claim against the property in order to gain full and lawful title to the entire property.' Traditionally, because the law of finds deprives true owners of their property rights, admiralty courts have favored applying the law of salvage." Yet, courts will apply the law of finds if a shipwreck has been long-lost, if the owner has publicly abandoned2 the shipwreck," or if the owner is no longer in existence. 1 If a court were to apply the law of salvage to the situation of 1-52, Tidwell and his team would have to share a portion of whatever they might recover with the original

119. GILMORE & BLACK, JR., supra note 97, § 8-2, at 534-35; see also Legnos v. M/V Olga Jacob, 498 F.2d 666, 669 (5th Cir. 1974) (emphasizing that a valid salvage claim must include the element of marine peril); California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) (reflecting just such a claim); Fry, supra note 109, at 867 (indicating that salvage actions are brought against ships by salvors looking for salvage awards). Importantly, while most people might consider that vessels already sunk are no longer in peril at sea, courts generally find that shipwrecks may be in peril at sea where they and their cargoes are in danger of being lost permanently due to exposure to natural elements. Lin, supra note 91, at 506 n.17 (citing Treasure Salvors, Inc. v. The Unidentified, Wrecked, & Abandoned Sailing Vessel, 569 F.2d 330, 336-37 (5th Cir. 1978), and Platoro Ltd. v. The Unidentified Remains of a Vessel, 614 F.2d 1051 (5th Cir. 1980)); see also KINDER, supra note 98, at 348 (commenting on the legal significance of "rescuing a vessel in marine peri). 120. See Marex, 952 F. Supp. at 828-29 (demonstrating that courts may apply the law of finds); Fry, supra note 109, at 877. Clearly, the abandonment element is the most important in terms of a situation triggering application of the law of finds by a court. 121. See Lin, supra note 91, at 487; R.M.S. Titanic, 171 F.3d at 961 (citing, inter alia, Martha's Vineyard Scuba Headquarters, Inc. v. The Unidentified, Wrecked, & Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir. 1987)). 122. R.M.S. Titanic, 171 F.3d at 961 ("Because the law of finds deprives the true owner of a property right, the courts of admiralty disfavor its application and prefer to apply the law of salvage in its stead."). 123. See Moyer v. The Wrecked & Abandoned Vessel Known as the Andrea Doria, 836 F. Supp. 1099, 1104-05 (D.N.J. 1993) ("Applying the law of finds is proper only when there had been a finding that the sunken property has been abandoned by its previous owners.") (citing Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 464 (4th Cir. 1992)); BENEDICT ON ADMIRALTY, supra note 91, § 158, at 11-17; R.M.S. Titanic, 171 F.3d at 962 ("Accordingly, the law of finds is most often applied in the context of long-lost shipwrecks.") (citation omitted). 124. See Treasure Salvors, 569 F.2d at 337 ("Disposition of a wrecked vessel whose very location has been lost for centuries as though its owner were still in existence stretches a fiction to absurd lengths."). 962 BUFFALO LAW REVIEW [Vol. 49 owners of the submarine-the Japanese Government-and would most likely receive a substantially smaller return on their treasure hunting investment.' On the other hand, if a court were to apply the law of finds to Tidwell's recovery efforts, the team would retain ownership rights to and solely profit from all that they salvage from 1-52. At this point, it appears that Tidwell might be able to pursue an in rem ownership action against 1-52 and her cargo in court, but it remains unclear as to whether he might be able to convince the court that 1-52 falls into one of the situations in which the law of finds is traditionally applied. While the above mentioned generalities regarding application of the law of salvage and the law of finds are typically guiding in situations involving commercial wrecks, as the United States District Court for the District of New Jersey has stated, "[c]learly, warships are to be treated uniquely."'26 In fact, in the late twentieth century, the international community has promulgated specific rules pertaining to the application of the law of finds in situations specifically involving wrecked warships' 2 -rules that, on

125. Additionally, it is important to point out that, despite the lure of riches and romance, typically underwater treasure hunts are, at best, high-risk investments for investors. See Koerner, supra note 3, at 50 (insert). Generally in such investments, [tihe deeper the treasure, the greater the gamble because the costs of recovery go up exponentially. It is not a game for the faint-hearted, least of all for conservative types who like to invest their money so as to yield fixed returns on capital, and who keep all sorts of insurance policies handy for papering over life's unforeseeable cracks. HAMILTON-PATERSON, supra note 4, at 7. In fact, as entrepreneur Phil Masters has explained, his "experience has been that most treasure hunts are scams." Koerner, supra note 3, at 50 (insert). One such scam involving the search for a Japanese warship off the Philippines ended up costing a California investor $40,000. Id. Even legitimate searches can produce next-to-nothing in returns for investors: "Ohioans who gave Tommy Thompson the $12.7 million to find the [S.S.] CentralAmerica have yet to see a penny, despite the 3 tons of gold recovered-insurance companies have contested the loot's ownership for a decade." Id. Therefore, where returns from such treasure hunts are few and far between, it is even more important for Tidwell and his team to limit the number of outside individuals and entities that can present a legitimate claim to any treasure they might recover. 126. United States v. Steinmetz, 763 F. Supp. 1293, 1299 (D.N.J. 1991), affd, 973 F.2d 212 (3d Cir. 1992). 127. See Peter E. Hess, Wrecking Diving, Institute of Marine Archaeological Conservation, LLC, at http:/vww.imacdigest.com/wrecking.htm (last visited July 12, 2000) (on file with the author) ('Today, virtually all countries assert some sort of sovereign immunity protecting 'their' vessels and aircraft from 2001] CLAMS TO MILITARY SHIPWRECKS 963

their face, appear to frustrate Tidwell and his team's chances to be successful in such an ownership action regarding 1-52. Therefore, the question that must be answered at this point is, what rules of maritime law pertain to the application of the law of finds in situations specifically involving wrecked warships?

C. TraditionalInternational Maritime Law and Warship Wrecks Conventional international law does not control such wrecks.'28 Although article ninety-five of the Convention on judicial arrest pursuant to a salvor's claim."); see also Steinmetz, 763 F. Supp. at 1299 (highlighting that, in the opinion of the United States Department of State, treaties and foreign case law delineate a "well-established State practice" with regard to the application of the law of finds to sunken warships) (citing LEICH Memorandum, supra note 17, at 1004-05). Peter Hess is counsel for Sea Hunt, Inc., in the case of Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 212 F.3d 634 (4th Cir. 2000). Jennifer Bier, A 1997 Law FirmBreak- in Has Northern Virginia Firms Thinking About Security. Spain Wins a Big UnderwaterBattle. The 4th Circuit Goes Online, LEGAL TIMES, Aug. 14, 2000, at 17, WL 8/14/2000 LEGALTIMES 17. 128. Cf LEICH Memorandum, supra note 17, at 1000. In 1980, the Deputy Legal Adviser of the United States Department of State delivered a memorandum to the Deputy General Counsel of the United States Maritime Administration containing the State Department's views on the question of whether the United States acquired any rights to Japanese vessels and their contents sunk by U.S. forces during World War II. The Office of The Judge Advocate General of the U.S. Navy and the Office of the General Counsel of the United States Department of Defense both concurred with the State Department's conclusions. See id. at 999-1006. In part, the memorandum addresses the question of whether conventional international law governs the question at issue: The acquisition by a belligerent of rights to public property of an enemy during an armed conflict is regulated by certain treaties and by customary international law. The most important treaties on this subject which have been ratified by the United States are: Hague Convention (No. IV) Respecting the Laws and Customs of War on Land and the Annex thereto, October 18, 1907 [1910], 36 Stat. 2277, T.S. No. 539, 1 Bevans 631; Hague Convention (No. XI) Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, October 18, 1907 [1910], 36 Stat. 2396, T.S. No. 544, 1 Bevans 711; and the four 1949 Geneva Conventions for the protection of war victims, August 12, 1949 [1956], 6 U.S.T. 3114-3695, T.I.A.S. No. 3362-3365. Although these treaties are detailed with respect to property on land and certain types of property at sea, they do not directly address the issue of property rights over enemy warships that might be destroyed or captured in wartime. Consequently, the 964 BUFFALO LAW REVIEW [Vol. 49 the Law of the Sea..9 states that "[w]arships on the high seas have complete immunity from the jurisdiction of any state other than the flag states,"13 and article ninety-six provides that "[sihips owned or operated by a state and used only on government noncommercial service shall, on the high seas have complete immunity from the jurisdiction of any state other than the flag state,"3' neither article definitively applies to shipwrecks. 3 " This may be due to the fact that, where ships are generally considered to be navigable vessels, "[iut is debatable.., whether sunken warships and State-owned vessels... lying on the sea-floor" qualify as "ships."'3 As a result, although the Convention on immunity,the Law of the Sea alludes to the doctrine of sovereign where no treaty currently governs either the treatment of sunken ships located beyond coastal state jurisdiction, or the treatment of sunken warships or military aircraft, conventional international law is not clearly controlling."5

ownership of such property is a matter primarily of customary international law. Id. at 1000. 129. Convention on the Law of the Sea, supra note 113. 130. Id. at art. 95. 131. Id. at art. 96. 132. See STRATI, supra note 9, at 221. 133. Id. For a further discussion of this issue, see infra note 298. 134. See Robert S. Neyland, Sovereign Immunity and the Management of United States Shipwrecks, Naval Historical Center: Underwater Archaeology Papers, at http://history.navy.mil/branches/orgl2-7h.htm (Dec. 22, 1999) (on file with author) ("Sovereign rights on the high seas are affirmed in Articles 95 and 96 of The Law of the Sea Convention (1982)."). 135. Roach, supra note 4 ("There is, however, at present no multilateral treaty governing the treatment of sunken ships located in those areas beyond coastal State jurisdiction, nor is there any multilateral treaty governing the particular case of sunken warships or military aircraft.") (internal footnote omitted). Strati indicates that, during the Third United Nations Conference on the Law of the Sea, Bulgaria, the Belorussian Soviet Socialist Republic, Czechoslovakia, the German Democratic Republic, Hungary, Poland, the Ukranian Soviet Socialist Republic, the Union of Soviet Socialist Republics, and Yemen attempted to add articles to the final draft of the Convention on the Law of the Sea that would have both extended the sovereign immunity doctrine enunciated in articles ninety-five and ninety-six to sunken warships and allowed only flag states to salvage their warships sunk on the high seas. STRATI, supra note 9, at 220-21, 236 nn. 30-33. None of these proposals, however, made it into the final treaty. Id. at 221. Additionally, although The United Nations Educational, Scientific, and Cultural Organization ("UNESCO") is contemplating "an edict that would outlaw the commercial salvage of any shipwreck more than 100 years old... [elven if the ban comes to pass, there are 20011 CLAIMS TO MILITARY SHIPWRECKS 965 Under customary international law and the doctrine of sovereign immunity,3 ' a country has traditionally been thought to retain ownership of its sunken warships.' In fact, in most cases, "no person or state may salvage or attempt to salvage sunken state vessels or aircraft, or their associated artefacts [sic], wherever located, without the express permission of the sovereign flag state," 8 and "sunken state vessels and aircraft containing crew remains are also entitled to special respect as war graves and must not be disturbed without the explicit permission of the sovereign state.""9 Under customary international law,

serious doubts about how effectively governments can police three quarters of the Earth's surface" in the absence of a detailed multilateral agreement. Koerner, supra note 3, at 50. 136. See ENCYCLOPEDIA, supra note 15, at 398 (defining "Sovereign Immunity" as "[tihe immunity of publicly owned property from the exercise of jurisdiction over it by any other government or private person or entity"). Contained in early principles of the general maritime law of nations, "[tihe sovereign immunity provisions of Admiralty law are well-established." Neyland, supra note 134. 137. Vesilind, supra note 12, at 124. 138. ENCYCLOPEDIA, supra note 15, at 399; see Letter from James H. Michel, Deputy Legal Adviser of the Department of State, to Leonard H. Dickstein, Deputy General Counsel of the Maritime Administration (Dec. 30, 1980), Dep't of State File No. P81 0004-0338, reprinted in MARIAN NASH LEICH, 1980 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 999 (1980) [hereinafter LEICH Letter] ("Permission must be requested from the United States to salvage sunken U.S. warships, and as a matter of policy, the U.S. Government does not grant such permission with respect to ships that contain the remains of deceased servicemen or explosive material. It is the view of the Department of State that requests from foreign countries to have their sunken vessels similarly respected by salvors should be honored."). 139. ENCYCLOPEDIA, supra note 15, at 399; see LEICH Memorandum, supra note 17, at 1005, 1006. Interestingly enough, not all states in the international community may require that their sunken state vessels containing crew remains be treated with special respect as a war grave. "Apart from anything else, different cultures have widely differing attitudes toward the bodies of their dead, some making a fetish of them while others view them indifferently as mere cast-off envelopes." HAMILTON-PATERSON, supra note 4, at 45. Building on this premise, Nigel Pickford indicates that "[tihe idea of the sanctity of a shipwreck is, in fact, a culturally relative concept." PICKFORD, THE ATLAS OF SHIPWRECKS, supra note 31, at 8. Turning to the specific case of 1-52, James Hamilton-Paterson has asked, "what happens when a wreck is comparatively recent, dating from the Second World War, but there are no human remains left?... Can a tomb contain neither ash nor bone yet remain a tomb? Does a mere headstone-or an Admiralty list of names--constitute a grave?" HAILTON-PATERSON, supra note 4, at 46. Seemingly answering these questions more than four years in advance, Pickford has written that 966 BUFFALO LAW REVIEW [Vol. 49 however, "[g]overnment title can be lost, transferred, or given up." 4 Nevertheless, it is generally accepted that states only lose title to sunken vessels by international agreement or by express and lawful abandonment, gift, or sale of the vessel by the proper authorities, and not by mere passage of time.' Focusing specifically on the abandonment method of title transfer, customary international law appears to require more than implications of abandonment in order for the law of finds to apply to a situation involving a wrecked warship in international waters.' In sum, under both treaty and customary international maritime law, if a state does not publicly transfer title to its sunken warships, the state remains the only party vested with the legal right to salvage the vessels. As far as has been reported, the Japanese government has not passed any law either renouncing title or transferring title to 1-52 or her cargo. Therefore, the doctrine of sovereign immunity would appear to frustrate any attempts that might be made by Tidwell to claim ownership to 1-52-that is, unless U.S. maritime law or U.S. courts interpreting international law hold differently.

[tihe Japanese certainly do not regard them as graves. In recent years they have paid large sums of money for Second World War losses to be salvaged specifically for the purpose of recovering the bodies so that they may be properly buried. The Western position tends to be more muddled.... To my mind, a shipwreck is not a grave in any meaningful sense of the word. It is the result of an accident or an act of war. PICKFORD, THE ATLAS OF SHIPWRECKS, supra note 31, at 8. Hamilton-Paterson apparently agrees: "Japan, it turns out, has no such category as a war grave or else the 1-52 would surely qualify. It insists only that any human remains be returned for proper Shinto burial." HAMILTON-PATERSON, supra note 4, at 49. 140. Neyland, supra note 134. 141. See ENCYCLOPEDIA, supra note 15, at 398; Roach, supra note 4. 142. See, e.g., Simon v. Taylor, 2 LLOYD'S REP. 338, (Sing. High Ct. Oct. 24, 1974), 1975 WL 45289 (holding that, in the absence of formal abandonment, U- 859, a German U-boat sunk by the British in the Straits of Malacca in 1944, remains the property of Germany); LEICH Memorandum, supra note 17, at 1005 (citing and discussing Nordsjo Dykker Co. v. Hording Skipsopphugning, Norsk Retstidende 346 (1970) (holding that Germany did not lose rights to a submarine sunk in 1917 near Norway, and claimed by competing individuals, "through the mere passage of time")). 2001] CLAIMS TO MILITARY SHIPWRECKS 967 D. TraditionalUnited States Maritime Law and Warship Wrecks In essence, United States maritime law regarding foreign warship wrecks in international waters embodies the general principles of international law. For use as guidance when dealing with sunken state vessels, the United States has in fact issued a joint statement, along with France, Germany, Japan, the Russian Federation, the , and Northern Ireland ("Joint Statement"),1"4 which acknowledges: (1) the property rights of flag states over their vessels; (2) that sunken state vessels are historical artifacts entitled to special protection; (3) that sunken state vessels may be war graves; (4) that disturbance of sunken state vessels is a destructive process; and (5) that "any proposed recovery or excavation must provide a research design, site surveys, minimal site disturbance.., adequate financial resources, preparation of professional reports, and a comprehensive conservation plan.""4 Emphasizing the doctrine of sovereign immunity, U.S. courts have held that the Department of the Navy retains custody of its ship and aircraft wrecks despite the passage of time, and regardless of whether they are lost in U.S., foreign, or international waters. 45 Additionally, such wrecks are immune from the law of salvage without express authorization from the Navy, due in part to their potential status as war graves.'46 Finally, similar to customary

143. Department of State, 1995 Joint Statement on Sunken State Vessels and Aircraft, unclassified naval cable to American embassies Bonn, London, Tokyo, Paris, and Moscow (Sept. 1995) (on file with the Naval Historical Center, Washington, D.C.) [hereinafter Joint Statement]. 144. Neyland, supra note 134. 145. See id. Neyland supports this statement by pointing out sovereign immunity's foundations in early maritime law. Additionally, Neyland cites two cases-Hatteras, Inc. v. The U.S.S. Hatteras, in rem, & United States, in personam, 1984 A.M.C. 1094, affd, 698 F.2d 1215 (5th Cir. 1982), and United States v. Steinmetz, 763 F. Supp. 1293 (D.N.J. 1991), affd, 973 F.2d 212 (3d Cir. 1992)-in support of this doctrine. Id. It is important to point out, however, that U.S. policy has not always been so consistent. In some instances, the Department of State has recognized implied abandonment of U.S. warships from the seventeenth and eighteenth centuries based on the long passage of time. Yet, where nineteenth and twentieth century U.S. warships are involved, the State Department has taken the position that passage of time does not divest the United States of title. See LEICH Memorandum, supra note 17, at 1004-05. 968 BUFFALO LAW REVIEW [Vol. 49 international law, under U.S. maritime law, the condition of abandonment is key for determining whether the law of finds may1 be applied to a situation involving a sunken warship. 7 Nonetheless, U.S. law has come to differ ever so slightly from international law by apparently distinguishing between American and foreign warship wrecks when dealing with the issue of abandonment. Where the Constitution provides that only "[t]he Congress shall have the Power to dispose of... Property belonging to the United States,"" under either the doctrine of express or implied abandonment, where the United States Congress has not communicated the abandonment of a U.S. warship through an affirmative act, the United States has not abandoned such warship.' The House of Representatives has reinforced this position, stating that, "the United States only abandons its sovereignty over, and title to, sunken US warships by affirmative act. Passage of time or lack of

146. See Neyland, supra note 134; see also Clarissa A. Kang, Note, Chartering Through Protection for Historic Shipwrecks Found in U.S. Territorial Waters: Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or Vessels, 19 VA. ENV'L L.J. 87, 104 (2000) (explaining that the status of U.S. war vessels is clear in U.S. courts) (citing United States v. Steinmetz, 973 F.2d 212, 222 (3d Cir. 1992)). 147. Generally, it is the position of the United States Department of State, House of Representatives, and federal courts that, "[aifter an extensive analysis of treaty law, commentaries, United States caselaw and foreign caselaw ... it is clear that under well-established State practice, States generally do not lose legal title over sunken warships through the mere passage of time in the absence of abandonment." Steinmetz, 763 F. Supp. at 1299 (quoting LEICH Memorandum, supra note 17, at 1004-05); see also supra note 127. 148. U.S. CONST. art. IV, § 3, cl. 2. 149. See Steinmetz, 763 F. Supp. at 1299 ("Although abandonment may be implied under some circumstances, United States warships that were sunk during military hostilities are presumed not to be abandoned and are considered not subject to salvage in the absence of express consent from the United States Government.") (citation omitted). See also John Paul Jones, The United States Supreme Court and Treasure Salvage: Issues Remaining After Brother Jonathan,30 J. MAR. L. & Com. 205, 217-19 (1999). In fact, supporting this principle, the Supreme Court has held that even judges, as "officers who have no authority [under the Constitution] to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure to act." United States v. California, 332 U.S. 19, 40 (1947); see also Hatteras, 1984 A.M.C. at 1098. Instead, the proper procedure by which Congress may transfer title to sunken U.S. warships located outside the territory of the United States can be found in 10 U.S.C. §§ 7305-7306, 7545 (1988) and 32 C.F.R. §§ 172, 736 (1994). See Roach, supra note 4, at n.15. 20011 CLAIMS TO MILITARY SHIPWRECKS 969 positive assertions of rights are insufficient to establish such abandonment."5 ' The House of Representatives has also stated that, "[e]xcept in the case of U.S. warships or other public vessels (which requires an affirmative act of abandonment), the act of abandonment may be implied from the circumstances of the shipwreck." " ' Therefore, while U.S. maritime law clearly requires formal abandonment by the U.S. government in order to transfer title to an American warship, this principle does not apply, despite the Joint Statement 152 to all situations involving other nations' warships.03 Instead, by contrast to

150. H.R. REP. No. 100-514, pt. 1, at 3-4 (1988), reprinted in 1988 U.S.C.C.A.N. 365, 366. 151. Steinmetz, 763 F. Supp. at 1299 (quoting H.R. REP. No. 100-514, pt. 2, at 5 (1988), reprinted in 1988 U.S.C.C.A.N. 370, 374 (emphasis supplied)). It is important to take note of this statement because "Congress has the ability to revise and supplement the maritime law within the limits of the Constitution and to confer admiralty and maritime jurisdiction upon lower federal courts." Widener, Jr., supra note 18, at 186-87 (citing Crowell v. Benson, 285 U.S. 22 (1932)). 152. See supra note 143. 153. See Kang, supra note 146, at 103 ("The House Committee Reports that comprise the ASA's legislative history, although providing that U.S. warships or public vessels may not be considered abandoned except by affirmative act, do not address foreign vessels found in U.S. territorial waters.") (internal citations omitted). At first glance, this might seem to be a very tenuous proposition. Indeed, it depends in part on the manner in which the House Committee note on United States Code Congressional and Administrative News page 374 is interpreted. See supra note 151. Yet, there are two main reasons why the assumption can be made that Congress purposefully intended to differentiate between U.S. and foreign warships in terms of abandonment. First, while the argument can be made that the note was intended to cover all warships and public vessels, regardless of nationality, Congress clearly inserted "T.S." before "warships or other public vessels." H.R. REP. No. 100-514, supra note 151, at 5. As a result, it is logical to assume that Congress specifically identified American vessels in the first part of the note in order to differentiate such craft from foreign warships, which are left to be covered by the second part of the note. Second, as the Court in Steinmetz points out, separate notes in the legislative history of the Abandoned Shipwreck Act of 1987 refer only to the rules of abandonment as they pertain to U.S. warships, and do not address their applicability to situations involving foreign warships. See Steinmetz, 763 F. Supp. at 1299. Therefore, it is logical to assume that, if Congress intended the note on page 374 to pertain to both foreign and U.S. warships, it would have explicitly discussed both U.S. and foreign warships all along. Finally, while commenting on the decision in Steinmetz, Professor John Paul Jones has implied that where Congress refers to "U.S. warships or other public vessels," it is in fact referring specifically to "ships of the United States." Jones, supra note 149, at 218. 970 BUFFALO LAW REVIEW [Vol. 49 international law and the general maritime law of nations, U.S. maritime law can be interpreted as providing that even when foreign states do not explicitly transfer title to their sunken warships, they may not be the only party vested with the legal right to salvage such vessels. In an area of law as complex as that dealing with ownership and salvage rights to shipwrecks located in international waters, and given customary international law precedent, this proposition is quite remarkable. Yet, despite vague guidance by the House of Representatives, it is also one that remains relatively untested and

Additionally, Professor Jones has emphasized the fact that the State Department's Deputy Legal Adviser has admitted in the memorandum of law written for the Maritime Administration "that implied abandonment of warships is accepted in United States courts and by the executive branch of the government." Id. at 217 n.53 (1999) (citing LEICH Memorandum, supra note 17, at 1003). This statement, however, is utterly irreconcilable with article IV, section three, clause two of the United States Constitution and Congress's pronouncement, see supra notes 148, 150-51, unless it is interpreted as applying only to situations involving foreign warships. Therefore, it is evident that the formal abandonment doctrine that applies so clearly to U.S. warships does not apply so obviously to foreign warships. As a result, even Professor Jones has turned to U.S. courts for answers to this enigma by positing, "if it is to be settled that United States warships and other public vessels are immune from an inference of abandonment, does this domestic rule oblige the same treatment for corresponding vessels of foreign sovereigns?" Jones, supra note 149, at 219. 154. Cf. Kang, supra note 146, at 104 (stating that, although "it is not entirely clear in U.S. courts or under international law whether long-lost and forgotten warships retain flag nation ownership if they have not been expressly abandoned," it is "conventional wisdom that abandonment by the flag nation should not be assumed when the vessels at issue are sunken warships or sovereign vessels; recovery of such shipwrecks may require the consent of the flag nation.") (citing STRATI, supra note 9, at 221-22, 238-39). Professor John Paul Jones has relied on the case of Deklyn v. Davis, 2 N.Y Ch. Ann. 369, 1 Hopk. Ch. 135, (N.Y. Ch.) (1824), involving the frigate Hussar, to demonstrate the implied abandonment theory. The Hussar,a British warship sunk in New York's East River during the Revolutionary War, was rediscovered in 1823, and became the subject of a possession dispute in 1824. The New York Court of Chancery found that the Hussarhad been abandoned despite no indication that the British government had done so through any formal act. Id.; see Jones, supra note 149, at n.57. 155. See PICKFORD, LOST TREASURE SHIPS, supra note 6, at 20-22; Sean R. Nicholson, Comment, Mutiny as to the Bounty: International Law's Failing Preservation Efforts Regarding Shipwrecks and Their Artifacts Located in International Waters, 66 UMKC L. REV. 135, 137 (1997), WL 66 UMKCLR 135 (commenting that, where treasure hunters must deal with complicated issues such as jurisdiction, ownership, preservation, and the environment when a wreck is discovered in international waters, existing international law is unable to adequately regulate the recovery of sunken ships and cargoes). 2001] CLAIMS TO MILITARY SHIPWRECKS 971 undeveloped in U.S. courts.' Where technological developments have only recently allowed treasure hunters to search for many of the world's warships lost deep in international waters,'57 there are no cases exactly on point.'58 Yet, the United States District Court for the Eastern District of Virginia has essentially tackled the issue of abandonment regarding wrecks of foreign warships-and thus the application of the law of finds to such situations-by looking to alternative demonstrations for evidence of abandonment of particular sunken vessels on the part of a foreign nation in the case of Sea Hunt, Inc. v. The Unidentified,Shipwrecked Vessel or Vessels.'59

IV. A CHANGING APPROACH OF THE LAw?

A. La Galga de Andalucia and Juno: Still Making Waves After Nearly Two Centuries

1. Sea Hunt and the United States District Court for the Eastern District of Virginia. Commissioned in 1732, the La Galga de Andalucia ("La Galga") was a fifty-gun frigate

156. U.S. courts are, after all, the locale where the uncertainties of U.S. maritime law are made clear. As Judge Widener has stated, [hack of Congressional action has left the federal courts to fashion substantive admiralty law. While the Supreme Court has occasionally spoken, it is largely the inferior federal courts which have developed and shaped admiralty law, taking into account successes and failures of other maritime nations while keeping in mind an overall goal of promoting the shipping and commerce of the United States. Widener, Jr., supra note 18, at 187. In fact, U.S. government officials and underwater archaeologists, alarmed with the growing ability of salvors to claim ownership of sunken ships, have been looking for a case to challenge the current state of the law of finds under U.S. maritime law. Paul Clancy, Spain Takes Claim to Wrecks off Virginia to Court, VA. PILOT-STAR, Dec. 24, 1998, at B2, available at 1998 WL 15073952 [hereinafter Clancy, Spain Takes Claim]. 157. See Lin, supra note 91, at 483 (citing SCHOENBAUM, supra note 92 (commenting that "technological advances of the late twentieth century... have allowed scientists to explore farther off the coast and deeper into the high seas than ever before")). 158. That is, as determined by legal research conducted on Westlaw through September 1, 2000. 159. 47 F. Supp. 2d 678 (E.D. Va.), mot. to amend denied by No. 2:98CV281, 1999 WL 1293620 (E.D. Va. July 29, 1999), affd in part, rev'd in part, 221 F.3d 634 (4th Cir. 2000), cert. denied,__ U.S. -, 121 S. Ct. 1079 (2001). 972 BUFFALO LAW REVIEW [Vol. 49 of the Spanish .6 ' La Galga served for four years as part of Spain's Mediterranean Fleet, and, after 1736, served as a treasure convoy escort between the Caribbean and Spain. 6' On August 18, 1750, La Galga sailed from Havana with "the Second Company of the Sixth Battalion of Spanish Marines, Spanish Royal property, and English military prisoners," on a mission to escort a convoy across the Atlantic Ocean. 62 Nearly one week later, however, a hurricane badly battered the warship off the coast of , breaking three of her masts and causing her to take on water." Severely crippled, La Galga sank off the coast of Virginia on August 25, 1750.'64 Forty years later, the Juno ("Juno") was commissioned165 in 1790 as a thirty-four gun frigate of the Spanish Navy. Juno also served as a warship for Spain on various missions in the Caribbean and Atlantic. 66 On October 1, 1802, Juno sailed from San Juan bound for Spain with a group of Spanish soldiers, "the Third Battalion of the Regiment of Africa."'67 Once again, over two weeks later, a storm

160. Id. at 680; see also Paul Clancy, Spain, Salvor Vie for Wrecks: A Federal Court in Norfolk to Decide Fates of Two Ships, VA. PILOT-STAR, Apr. 2, 1999, at B1, 1999 WL 7160525 [hereinafter Clancy, Spain, Salvor Vie] (stating that La Galga was a fifty-gun frigate). La Galga translates from Spanish as "The Greyhound." Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 638 (4th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1079 (2001). 161. Sea Hunt, 47 F. Supp. 2d at 680. 162. Sea Hunt, 221 F.3d at 638-39; ef. Sea Hunt, 47 F. Supp. 2d at 680. The district court's decision indicates that La Galga departed from Havana on this last voyage on August 7, 1750. Id. It is unclear at this point which date is correct. 163. Sea Hunt, 47 F. Supp. 2d at 680-81; see also Clancy, Spain Takes Claim, supra note 156 (stating that "La Galga [was] caught in violent storms off Bermuda and forced, demasted and rudderless, toward the Virginia coast, where [she] took on heavy seas and possibly ran into shoals"). 164. Sea Hunt, 47 F. Supp. 2d at 681. Despite the sinking, a large number of the ship's passengers and crew made it to land safely. Sea Hunt, 221 F.3d at 639. 165. Sea Hunt, 221 F.3d at 639; Sea Hunt, 47 F. Supp. 2d at 681; Clancy, Spain, Salvor Vie for Wrecks, supra note 160 (stating that Juno carried thirty- four heavy guns). 166. See Sea Hunt, 47 F. Supp. 2d at 681. 167. Sea Hunt, 221 F.3d at 639; cf Sea Hunt, 47 F. Supp. 2d at 681. Again, the lower court and the appellate court differ on key dates. The Fourth Circuit decision indicates that, as part of the mission in question, Juno departed the port of Veracruz on January 15, 1802. See Sea Hunt, 221 F.3d at 639. Yet, the Eastern District of Virginia's decision indicates that, although Juno did depart Veracruz on January 15, "[a] severe storm caused damage to JUNO, and forced 2001] CLAIMS TO MILITARY SHIPWRECKS 973 overtook Juno, causing her to take on water.s' Badly battered, Juno joined the American schooner La Favorita ("La Favorita") in sailing west toward the American coast for shelter.'69 Juno was in such bad shape by this time that her captain ordered passengers transferred to La Favorita during a short-lived lull in the storm.7 ° Yet, on October 28, 1802, La Favorita lost sight of Juno in a heavy fog.'7' Juno and her more than 400 passengers were never seen again, and were correctly believed lost to the Atlantic.'72 In March 1998, after finding the two shipwrecks and obtaining permits from the Virginia Marine Resources Commission to salvage the wrecks, the maritime salvage company Sea Hunt, Inc., was granted exclusive salvage rights by the United States District Court for the Eastern District of Virginia.'73 In response, Spain asserted a claim of ownership against the two wrecks in order to halt Sea Hunt's salvage operations.'74 At a hearing on April 1, 1999, her to put in at San Juan where she underwent repairs for seven months." Sea Hunt, 47 F. Supp. 2d at 681. Thus, it appears that a departure date of October 1, 1802 from San Juan for Juno is most accurate. 168. See Clancy, Spain Takes Claim, supra note 156 (stating that Juno was "caught in violent storms off Bermuda and forced, demasted and rudderless, toward the Virginia coast, where [she] took on heavy seas and possibly ran into shoals"). 169. See Sea Hunt, 221 F.3d at 639. 170. Sea Hunt, 47 F. Supp. 2d at 681. Despite this order, only seven passengers were actually transferred before the storm kicked up again. Sea Hunt, 221 F.3d at 639. 171. Sea Hunt, 47 F. Supp. 2d at 681. 172. See Clancy, Spain, Salvor Vie for Wrecks, supra note 160 (stating that the Juno lost most, if not all, of her 425 passengers); Paul Clancy, Judge: Spain Gets All of Ship's Loot: U.S. Treasure Hunter Must Turn Over Artifacts Recovered from Sunken Ship off Assateague, VA. PILOT-STAR, June 29, 1999, at B6, available at 1999 WL 7169524 [hereinafter Clancy, Judge: Spain Gets All] (stating that Juno "went to the bottom with more than 400 passengers"). The Fourth Circuit confirms that "[alt least 413 sailors, soldiers, and civilians perished in the sinking of Juno." Sea Hunt, 212 F.3d at 639. 173. Sea Hunt, 47 F. Supp. 2d at 680, 682. 174. See Clancy, Spain Takes Claim, supra note 156. As stated in this article, With a major Washington law firm providing the gun powder, the government of Spain aimed a legal broadside Wednesday at Virginia's ownership of ancient shipwrecks off its coast and a private salvor's bid to recover them. "The Kingdom of Spain," as it refers to itself, went into Federal District Court to claim that it, not Virginia, owns both of the ships that sank in violent storms nearly two centuries ago off what is now Assateague National Seashore. 974 BUFFALO LAW REVIEW [Vol. 49 despite the unsettled nature of United States maritime law regarding abandonment of foreign warships,175 Spain argued that La Galga and Juno are both warships, and that, in light of the manner in which the U.S. retains ownership of its warship wrecks, they have never been formally abandoned.176 For its part, Sea Hunt argued that Spain had abandoned the wrecks by either: (1) failing to claim them for so many years; (2) by declaring war against the United States in 1898;' or (3) by signing the treaty which ended the Seven Years War.78 In a decision dated April 27, 1999, the Honorable J. Calvitt Clarke, Jr., held that Spain retains title to the wreck of Juno, but that Spain abandoned title to La Galga, so that Virginia now holds title to La Galga pursuant to the Abandoned Shipwreck Act of 1987 ("ASA").' 9 Judge Clarke refused to address the parties' arguments as to whether Juno and La Galga properly meet the definition of warships.8 ' Instead, dismissing Sea Hunt's "passage of time" argument 8' and "declaration of war" argument,'82

Id.; see also Sea Hunt, 47 F. Supp. 2d at 682 ("On May 18, 1998, the United States filed a Motion to intervene, and a claim on behalf of Spain asserting ownership of the vessels."). 175. See supra notes 153-54 and accompanying text. 176. See Clancy, Spain, Salvor Vie, supra note 160 ("Spain argued that both were warships and, in the same way the U.S. has regarded sunken ships near foreign coasts, never abandoned."). 177. Id. ("Lawyers for Sea Hunt, the company with a salvage permit from Virginia, argued that Spain had long ago abandoned the ships-not only by failing to claim them but by going to war against the U.S. and forfeiting any rights to them."). 178. Sea Hunt, 47 F. Supp. 2d at 688. 179. Id. at 691-92. After the decision, Sea Hunt owner Ben Benson admitted that he was "devastated by the news," having spent nearly $1.5 million up to that point on salvage of Juno. Clancy, Judge: Spain Gets All, supra note 172. Even Judge Clarke admitted that the decision placed "a substantial burden on Sea Hunt, and.., potential salvors." Id. Diplomatically, the Spanish Embassy in Washington did not comment on Judge Clarke's ruling. Id. 180. Sea Hunt, 47 F. Supp. 2d at 688, 691. Although such a focus on the part of Judge Clarke might have done much to clarify U.S. maritime law, he would necessarily have become side-tracked with difficult arguments, such as those raised by Strati. See infra notes 298-304 and accompanying text. 181. See Sea Hunt, 47 F. Supp. 2d at 688 ("Although the Court clearly allows for an inference of abandonment for shipwrecks which have been lost and undiscovered for some time, in a case [such as this one] where the original owner appears, abandonment may not be inferred... [based on] how long the ships have been lost."). 182. See id. at 690-91. Judge Clarke reiterated that "[tihe proposition that a declaration of war does not, in itself enact a confiscation of the property of the 2001] CLAIMS TO MILITARY SHIPWRECKS 975 Judge Clarke focused his decision on Sea Hunt's "treaty" argument.'83 Reviewing the text of the Definitive Treaty of Peace Between France, Great Britainand Spain ("Treaty" or "Treaty of 1763"),"' Judge Clarke found that in "a sweeping grant of territory and property... Spain... [ceded] all that Spain possesses on the continent of North America to the East or to the South East of the river Mississippi... [including] everything that depends on the land."'85 Interpreting this provision, Judge Clarke found that Spain also ceded its rights to its vessels sunk in North America prior to 1763 by signing the Treaty.' Finally, holding that the Treaty constitutes "strong and convincing evidence of abandonment,"18' 7 and emphasizing that only La Galga had sunk prior to 1763, Judge Clarke ruled that only La Galga had been abandoned by Spain in signing the Treaty.' Several months after the Court's decision, Spain filed a motion to alter or amend Judge Clarke's judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. 8 ' In support of its motion, Spain argued that a

enemy within the territory of the belligerent, is believed to be entirely free from doubt." Id. at 691 (quoting Brown v. United States, 12 U.S. (8 Cranch.) 110, 127 (1814)). Instead, enemy ships must be actually seized in order to be captured, and thus forfeited during war. Yet, where neither Sea Hunt nor the United States had actual control over the wrecks at any time during the hostilities of 1898, the wrecks were not captured, and thus not abandoned by Spain due to its declaration of war. See id. at 690-91. 183. See id. at 688-90. 184. Feb. 10, 1763, Fr.-Sp.-Gr. Brit., 42 Consol. T.S. 279. 185. Sea Hunt, 47 F. Supp. 2d at 689 (quoting Article XX of the Definitive Treaty of Peace Between France, Great Britain and Spain) (internal quotation marks omitted). 186. Id. 187. Columbus-Am. Discovery Group, Inc. v. The Unidentified, Wrecked, & Abandoned Sailing Vessel, 974 F.2d 450, 465 (4th Cir. 1992). Earlier in the decision, Judge Clarke reviewed the case of Columbus-America and precedent set by the search for the S.S. CentralAmerica. Sea Hunt, 47 F. Supp. 2d at 686- 88. Finding that Columbus-America was binding on his court, Judge Clarke then held that, in order for Sea Hunt to successfully press its claim for possession under the law of finds, it would have to meet Columbus-America's requirement of "strong and convincing evidence" in demonstrating that Spain had abandoned both wrecks. Id. at 688. 188. Sea Hunt, 47 F. Supp. 2d at 689-90. 189. Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 191 F.R.D. 508, 509 (E.D. Va. 1999), affd in part, rev'd in part, 221 F.3d 634 (4th Cir. 2000) cert. denied, _ U.S. _, 121 S. Ct. 1079 (2001). Rule 59(e), subtitled "Motion to Alter or Amend Judgment," provides that "[any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." FED. R. CIV. P. 59(e). 976 BUFFALO LAW REVIEW [Vol. 49 recently-obtained Diplomatic Note issued by the government of the United Kingdom supported Spain's contention "that the signatories to the Treaty of 1763 did not intend to transfer any ownership rights in Spain's sunken ships in North America," and thus "that Spain never expressly abandoned its ownership rights to La Galga." 90 In response, Sea Hunt argued that Spain's motion was not timely under Rule 59(e).19 In an order dated July 29, 1999, Judge Clarke denied Spain's motion as untimely where it "was not filed within 10 days of the April 27, 1999, [decision]."'92 Additionally, Judge Clarke held that, "[e]ven if Spain's motion were timely, it would still fail on its merits" where: (1) "there has been no intervening change in controlling law;" (2) the Diplomatic Note "could and should have been presented to the Court either prior to or during the [previous] hearing;" and (3) where "the Court committed neither a clear error of law nor a manifest injustice in its earlier ruling."9 '

2. Sea Hunt and the United States Court of Appeals for the Fourth Circuit. The court fight had only just begun. Nearly nine months later, in May 2000, the Fourth Circuit Court of Appeals heard appeals on behalf of Spain, Sea Hunt, the Commonwealth of Virginia, and the United States as Amicus Curiae.' Focusing primarily on the issue of abandonment, Sea Hunt and Virginia argued that the Fourth Circuit (1) should apply an implied abandonment standard when evaluating the status of both Juno and La Galga, and, in doing so, (2) should affirm the lower court's

190. Sea Hunt, 191 F.R.D. at 510. Apparently, the United Kingdom communicated the Diplomatic Note to the United States, but the United States communicated the Note to Spain's counsel only after the court filed its April 1999 decision. Id. According to the court, the Diplomatic Note expressed the United Kingdom's "desire as a party to the 1763 Treaty for [the] Court to reconsider its interpretation of the Treaty of 1763 and to rule that Spain never expressly abandoned its ownership rights to LA GALGA." Id. 191. Id. Sea Hunt also argued in the alternative that the Diplomatic Note was not sufficient evidence to warrant the court's reconsideration or alteration of the decision. Id. 192. Id. at 510. 193. Id. at 510-11 (citing, inter alia, and relying primarily on the grounds for amending a previously entered judgment as enunciated in, Pac. Ins. Co. v. Am. Natl Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)). 194. Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 635 (4th Cir. 2000), cert. denied,__ U.S._ 121 S. Ct. 1079 (2001). 20011 CLAMS TO MILITARY SHIPWRECKS 977 decision as to La Galga, and issue a salvage award in favor of Sea Hunt regarding Juno.'95 Spain, supported by both the United States and Great Britain, instead argued that the court (1) should apply an express abandonment standard when evaluating the status of the ships, and, consequently, (2) should19 overturn the lower court's decision as to La Galga. 6 In a decision dated July 21, 2000, the Fourth Circuit sided completely with Spain, and against Sea Hunt and Virginia.'9 Chief Judge J. Harvie Wilkinson and Circuit Judges J. Michael Luttig and M. Blane Michael affirmed in part and reversed in part the lower court decision, ultimately deciding that Spain retained title to both Juno and La Galga.' 9' First, the court held that, where "Spain has asserted an ownership claim to the shipwrecks,... express abandonment is the governing standard."' 99 In support of this holding, the court reiterated that "the U.S. only abandons its sovereignty over, and title to, sunken U.S. warships by affirmative act; mere passage of time or lack of positive assertions of right are insufficient to establish such 20 abandonment." " The court also agreed with the United States Department of State that, under the Abandoned Shipwreck Act, "the same presumption against abandonment will be accorded vessels within the U.S. territorial sea that, at the time of their sinking, were on the non-commercial service of another State."20 ' The court then emphasized that both the 1902 Treaty of Friendship and General Relations Between the United States and Spain,2 °2

195. See id. at 640. 196. See id. 197. See Spain Sinks Salvage Plans: A Court Ruled the Country Owns its Ships Lost At Sea, Preventing Treasure Hunters from Raising Sunken Riches, ORLANDO SENTINEL, July 31, 2000, at A6, available at 2000 WL 3616661 (stating the court ruled in favor of Spain on July 21). 198. Denise Ryan, Sea Hunt v. Commonwealth of Virginia; No. 99-2035; Decided July 21, 2000, LEGAL TIMEs, July 31, 2000, at 37, available at WL 7/31/2000 LEGALTIMES 37; see Sea Hunt, 221 F.3d at 647-48. 199. Sea Hunt, 221 F.3d at 640 (citing Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 464-65 (4th Cir. 1992)). 200. Id. at 641 (quoting H.R. REP. No. 100-514(11), at 13 (1988), reprinted in 1988 U.S.C.C.A.N., at 381). 201. Id. (quoting H.R. REP. No. 100-514(11), at 13 (1988), reprinted in 1988 U.S.C.C.A.N., at 381). 202. See id. at 642 (citing and quoting Treaty of Friendship and General Relations, July 3, 1902, U.S.-Spain, 33 Stat. 2105). 978 BUFFALO LAW REVIEW [Vol. 49 and judicial respect for "the legitimate interests of the executive branch," 3 also required that the court apply an express abandonment standard when evaluating the status of the two ships. Finally, the court reconciled its holding 204 20 5 2 with case law from the First, Fifth, and Sixth Circuits, 1

Specifically, the court emphasized that Article X [of the Treaty] provides, "In cases of shipwreck, damages at sea, or forced putting in, each party shall afford to the vessels of the other ... the same immunities which would have been granted to its own vessels in similar cases."... This treaty requires that imperiled Spanish vessels shall receive the same immunities conferred upon similarly situated vessels of the United States. Id. (quoting Treaty of Friendship and General Relations, supra). After further review, "[bloth Spain and the United States agree that this treaty provision requires that in [U.S.] territorial waters Spanish ships are to be accorded the same immunity as United States ships. They also agree that such immunity requires application of the express abandonment standard." Id. at 643. 203. Id. at 643. Recognizing that the political branches of the federal government are charged with conducting foreign affairs, the court stated: "The express abandonment standard is regularly applied by the executive branch in dealing with foreign vessels. It is simply not for us to impose a looser standard that would interfere with this long standing political judgment in sensitive matters of international law." Id. at 643 (citing Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 109-10 (1948)). 204. See id. at 642 (citing Martha's Vineyard Scuba Headquarters, Inc. v. The Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059 (1st Cir. 1987)). The court emphasized that, in Martha's Vineyard, "no person or firm appeared to assert any overall claim of ownership" to the vessel. Id. (quoting Martha's Vineyard, 833 F.2d at 1065). 205. See id. (citing Treasure Salvors, Inc. v. The Unidentified Wrecked & Abandoned Sailing Vessel, 640 F.2d 560 (5th Cir. 1981)). The court emphasized that, in Treasure Salvors, the Fifth Circuit found that "salvage of a vessel or goods at sea, even when the goods have been abandoned, does not divest the original owner of title or grant ownership rights to the salvor, except in extraordinary cases." Id. (quoting Treasure Salvors, 640 F.2d at 567). 206. See id. at 641-42 (citing and discussing Fairport Int'l Exploration, Inc. v. The Shipwrecked Vessel, known as Captain Lawrence, 177 F.3d 491, 499 (6th Cir. 1999)). The court emphasized that, in Fairport,the Sixth Circuit limited its adoption of an inferential abandonment standard to "vessels formerly owned by private parties," thus supporting "a high burden on those who argue that an owner abandoned property that sank against his will." Id. (quoting Fairport, 177 F.3d at 499, 500). Yet, this holding by the Fourth Circuit fails to draw support from the Fairport court's emphasis-the original Treasure Salvors decision-that "[r]igid adherence to a doctrine requiring express abandonment would require courts to stretch a fiction to absurd lengths," Fairport,177 F.3d at 500 (quoting Treasure Salvors, Inc. v. The Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978)) (internal omission and quotation omitted), or comment that "[plermitting proof by inference reconciles maritime law's presumption against finding abandonment with the apparently-conflicting caselaw, and it explains the decisions upholding 2001] CLAMS TO MILITARY SHIPWRECKS 979 finding that an implied abandonment standard has never been applied in a salvage case where7 the sovereign owner has asserted a claim to its property.1 Second, having decided on the proper abandonment standard to apply to Juno and La Galga, the Fourth Circuit evaluated whether the ships had ever been expressly abandoned by Spain."' Looking to "the plain language of the 1763 Treaty"'° 9-the same treaty relied upon by the district court-and "the understandings of Spain and Great Britain, the relevant parties to [the Treaty of 1763] ,,21 the court held that there existed no "clear and convincing evidence" 1' demonstrating that Spain expressly abandoned either ship by signing the Treaty of 1763. Furthermore, the court held that, even under an implied abandonment standard, there was no sufficient indication that Spain had abandoned either ship."2 Thus, the court affirmed the

inferential abandonment." Id. (citing, inter alia, Deep Sea Research, Inc. v. The Brother Jonathan, 102 F.3d 379, 387-88 (9th Cir. 1996), affd in part, vacated in part sub nom., California v. Deep Sea Research, 523 U.S. 491 (1998)). 207. See Sea Hunt, 221 F.3d at 641. 208. Id. at 643-47. 209. Id. at 643. In this case, the Fourth Circuit engaged in a detailed and independent interpretation of article XX of the Treaty of 1763. The court specifically took note of the absence of common nouns such as "shipwreck," "vessels," "frigates," or "warships" in the portion of article XX dealing with cession, as well as the specific mention of items to be conveyed to Great Britain in other articles, such as "factories," "artillery," "fortresses," "castles," and "papers, letters, documents, and archives." Id. at 644. 210. Id. at 643-44. The Fourth Circuit took stock of the fact that "[bloth parties to Article XX of the 1763 Treaty agree that the Kingdom of Spain did not abandon LA GALGA." Id. at 646. The court also looked to the Diplomatic Note issued by the United Kingdom, which clarified that the Treaty of 1763 "cannot be interpreted as involving an express abandonment by Spain of its rights to the shipwreck of LA GALGA." Id. (internal quotations omitted). 211. Id. at 644 (quoting, inter alia, Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 464 (4th Cir. 1992)). In this manner, the court noted that, according to Fourth Circuit precedent, express abandonment of a vessel must be demonstrated by a plaintiff in order to secure an ownership judgment. See id. (citing Columbus-Am., 974 F.2d at 464). 212. Id. at 647. The Fourth Circuit considered a number of factors in reaching this decision: (1) that "[t]he mere passage of time since a shipwreck is not enough to constitute abandonment," id. (citing Columbus-Am., 974 F.2d at 461); (2) that "Spain attempted salvage after LA GALGA [sic] sank, maintained LA GALGA on its naval registry, and asserted a claim after Sea Hunt brought its admiralty action," id.; (3) that "technology has only recently become available for [La Galga's] salvage, id. (citing Yukon Recovery, L.L.C. v. Certain Abandoned Property, 205 F.3d 1189, 1194 (9th Cir. 2000)); and (4) that "Spain has vigorously asserted its interest in the wreck of LA GALGA and wishes to 980 BUFFALO LAW REVIEW [Vol. 49 district court decision as to Juno, and reversed the decision as to La Galga. Finally, the court concluded its decision by emphasizing that, where "the United States seeks to insure that its sunken vessels and lost crews are treated as sovereign ships and honored graves, and are not subject to exploration, or exploitation, by private parties seeking treasures of the sea,"21 principles of "customary international law" require that the United States protect "the sacred sites of other nations" when foreign governments hold the same beliefs and request the same treatment regarding their lost vessels and crews.214 3. The Impact of the Fourth Circuit's Sea Hunt Decision on Traditional United States Maritime Law. These decisions do not involve shipwrecks on the high seas, and therefore are not exactly on point in terms of the applicability of the law of finds under United States maritime law to situations involving foreign warship wrecks in international waters."5 Yet, the case is valuable when examining the uncertainty that exists regarding U.S. maritime law's treatment of such vessels. By basing its decision on an interpretation of the Treaty of 1763, the lower court emphasized the notion that foreign nations can divest themselves of title to sunken warships by affirmative acts-such as signing treaties-and indicated that such activity would be recognized under U.S. maritime law as a demonstration of explicit abandonment.216 Although the maintain it as a sacred military gravesite." Id. Finding that all these factors supported arguments made by Spain, the court found that "it would be difficult under any test to conclude that LA GALGA was abandoned." Id. 213. Id. at 647 (quoting Brief for United States Amicus Curiae at 1, Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000), cert. denied, - U.S. -, 121 S. Ct. 1079 (2001)). 214. Id. When writing of "customary international law," "the sacred sites of other nations," and principles of international comity regarding war dead, the court specifically cites the Digest of United States Practice in International Law as authority for what it claims are foundation principles. Id. (citing LEICH Memorandum, supra note 17, at 1006). 215. See supra notes 160-72 and accompanying text. 216. See Sea Hunt v. The Unidentified Shipwrecked Vessel or Vessels, 47 F. Supp. 2d 678, 689 (E.D. Va.) ("Article XX of the 1763 Treaty constitutes strong and convincing evidence under the Columbus-America standard of an express abandonment by Spain of its title to La Galga.") (emphasis added) (internal quotation marks omitted), mot. to amend denied by No. 2:98CV281, 1999 WL 1293620 (E.D. Va. July 29, 1999), affd in part, rev'd in part, 221 F.3d 634 (4th Cir. 2000), cert. denied, _ U.S. _, 121 S. Ct. 1079 (2001). 2001] CLAIMS TO MILITARY SHIPWRECKS 981 Fourth Circuit reversed in part the lower court decision regarding La Galga, it affirmed this "divestiture" notion by emphasizing the propriety of applying an express abandonment standard.217 Thus, the Fourth Circuit's decision in Sea Hunt clearly stands for the proposition that, given an appropriate set of circumstances, foreign nations can indeed abandon the wrecks of their sunken warships located in U.S. territorial waters.218 Despite this strong pronouncement 2" 9-one possibly intended by the Fourth Circuit to limit "shipwreck claims in many territorial seas and by nations other than Spain," and "strengthen state claims to high-seas wrecks"22 -Sea Hunt does not resolve all outstanding questions regarding U.S. maritime law's treatment of foreign warship wrecks.22' Where the case specifically involved only ownership claims made pursuant to the Abandoned Shipwreck Act, and thus only claims to wrecks located within U.S. territorial

217. See Sea Hunt, 221 F.3d at 643, 647-48. 218. See id. at 642-44, 647-48. 219. It is important to point out that not everyone views Sea Hunt as a solid decision. Ben Benson, the chief critic of the Fourth Circuit's decision, has stated that "[t]here's no case law to support their conclusion. It's uncharted waters for the shipwreck industry as a whole." Court Says FinderNot Keeper, supra note 21. Yet, a Justice Department attorney admitted that a decision against Spain in the case would have demonstrated an inconsistency between what protections the U.S. asks for abroad concerning its sunken warships, and what protections the U.S. can offer in return vis-&-vis sunken foreign warships. See Clancy, Spain, Salvor Vie, supra note 160. After all, in light of U.S. policy that clearly provides that American warships are never abandoned without formal action by Congress, Spain's Embassy has indicated that it does not view U.S. law as differentiating between the treatment of warships based on nationality within U.S. waters. See Clancy, Spain Takes Claim, supra note 156 (quoting Rafael Conde, the deputy chief of mission at the Spanish Embassy, as saying "[a] warship is a warship is a warship"). The Fourth Circuit obviously agreed with this position, as its dicta indicates: "[pirotection of the sacred sites of other nations thus assists in preventing the disturbance and exploitation of our own." Sea Hunt, 221 F.3d at 647. 220. Court Says FinderNot Keeper, supra note 21. 221. Instead, the decision may embolden treasure hunters to pursue the rights to such vessels with vigor despite the continued uncertain legal climate. In the strong and sarcastic words of treasure hunter Peter Leo, "[tihe hell with the U.S. government and the hell with Spain.... Why don't we just give all the gold back to the Indians of Bolivia, Peru, and Colombia? It came out of their homeland after all. They're the ones the Spaniards stole it from." Browning, supra note 7. Despite the ruling, Leo plans on pursuing salvage of gold and silver from the 1659 wreck of the San Miguel de Archangel off Jupiter Inlet, Florida. Id. 982 BUFFALO LAW REVIEW [Vol. 49 waters,"' Sea Hunt fails to spell out conclusively the specific conditions under which private salvagers might secure ownership judgments to either American or foreign warship wrecks found on the high seas. Although Sea Hunt and the House Report223 offer persuasive support for the notion that such wrecks can be abandoned by foreign nations, the Joint Statement,2 4 State Department 22 law226 pronouncements, ' and customary international provide equally strong support for the notion that such wrecks are never abandoned by either foreign nations or the United States. Thus, ambiguity and uncertainty remain after Sea Hunt as to whether (or, under what conditions) private salvagers may obtain rights to foreign warship wrecks in international waters under U.S. law.

B. Envisioning Cape Verde Explorations,Ltd. v. The Shipwrecked Vessel, Known as 1-52 Tidwell's discovery of and subsequent activities regarding 1-52 may work to end this uncertainty once and for all. A legal showdown between Tidwell and Japan over the fate of 1-52 28 would likely present an ideal case by which to test whether a federal court will attempt to extend Sea Hunt past United States territorial waters, and apply some sort of abandonment standard to foreign warship wrecks on the high seas. Will Sea Hunt, the traditional American approach to dealing with such wrecks, and other recent persuasive precedent work in conjunction to defeat any and all arguments by which Paul Tidwell and his team might attempt to convince a U.S. district court to grant them ownership rights to 1-52 and her cargo?

222. See Sea Hunt, 221 F.3d at 639, 640-41. 223. See supra notes 150-51 and accompanying text. 224. See supra note 143 and accompanying text. 225. See supra note 17. 226. See supra notes 138-42 and accompanying text. 227. Cf. Kang, supra note 146, at 105 (stating, as part of an analysis of the lower court decision in Sea Hunt, that "the [Abandoned Shipwreck Act], like international law and U.S. admiralty law, remains ambiguous in its definition of abandonment and its treatment of sovereign vessels. Congress did not codify an explicit definition of 'abandoned,' and as a result 'conflicting case law has subsequently developed over whether shipwrecks are abandoned' ") (quoting SHERRY HUTT ET AL., HERITAGE RESOURCES LAw: PROTECTING THE ARCHAEOLOGY AND CuLTuRAL ENVIRONMENT 449 (1999)). 228. See text accompanying supra note 87. 2001] CLAMS TO MILITARY SHIPWRECKS 983

V. POTENTIAL ARGUMENTS FOR OWNERSHIP OF 1-52

A. PreliminaryArguments for Ownership Rights to 1-52 and Her Cargo in Light of United States Maritime Law Developments Should Tidwell and his team attempt to obtain ownership rights to the submarine wreck pursuant to the law of finds, they would first have to convince a district court of the existence of at least one of three scenarios: (1) Japan, as the original owner of 1-52 is no longer in existence; 29 (2) 1-52 has been long-lost; or (3) Japan has publicly abandoned 1-52."' Sea Hunt, the traditional American approach to dealing with foreign warship wrecks, and other recent persuasive precedent, however, would clearly work in conjunction to defeat three arguments by which Paul Tidwell and his team might attempt to convince a U.S. district court that either scenario one or scenario two exists.

1. Argument Promoting Scenario One: Japan No Longer Exists. First and foremost, should Tidwell commence an ownership action, it would be ludicrous for him to argue that Japan is no longer in existence. Although defeated by the United States and the other Allied Powers in World War I,.32 Japan did not cease to exist as a country

229. See Treasure Salvors v. The Unidentified, Wrecked, & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978). This argument is similar to the one made in Simon v. Taylor, 2 LLOYD'S REP. 338 (Sing. High Ct. Oct. 24, 1974), 1975 WL 45289, where defendant salvagers and their financiers argued, inter alia, that, where Germany surrendered to the Allies at the end of World War II, "the Government of Germany ha[d] ceased to exist and Germany ha[d] ceased to exist as a state." Id. 230. See Treasure Salvors, 569 F.2d at 337. 231. See BENEDICT ON ADMIRALTY, supra note 91, § 158, at 11-17; R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 962 (4th Cir.), cert. denied, 528 U.S. 825, 120 S. Ct. 74 (1999). 232. In the wake of the destruction caused by two atomic bombs which decimated the cities of Hiroshima and Nagasaki in August 1945, Emperor Hirohito ordered the Japanese Imperial Government to sign an Instrument of Surrender provided by the Allied Powers and end the war. See The Avalon Project: Emperor Hirohito's Receipt of the Surrender Documents, at http://www.yale.edu/lawweb/avalon/wwii/j5.htm (last visited Aug. 23, 2000) (on file with the author). As a result, on September 2, 1945, in Tokyo Bay, Mamoru Shigmitsu, representative of the Emperor of Japan and the Japanese Government, and Yoshijiro Umezu, representative of the Japanese Imperial 984 BUFFALO LAW RE VIE W [Vol. 49 in the War's aftermath. Instead, reorganized and operating under a new constitution,"3 Japan continues to exist as a viable nation today.234 Tidwell might alternatively argue that where the operator of 1-52, the Imperial Japanese Navy, is no longer in existence today, the law of finds should apply. The Imperial Japanese Navy, however, existed only as an appendage of the Japanese Government; Japan was still the ultimate owner of the submarine in 1944. Therefore, it is almost certain that, should Tidwell ever make such arguments, they would be quickly dismissed by a district court.

2. Argument Promoting Scenario Two: 1-52 is a Long- Lost Shipwreck. Second, should Tidwell commence an ownership action regarding 1-52, he would probably be unable to convince a court that the submarine is a long-lost shipwreck, and therefore demonstrate that any claim he might make should be evaluated under the law of finds. Tidwell might argue that, where 1-52 remained undiscovered for just over fifty years, the wreck meets the definition of a long-lost shipwreck, and is the type of property to which the law of finds is generally applied under the general maritime law of nations. 36 Yet, 1-52's

General Headquarters, surrendered to the Allied Powers. The Avalon Project: First Instrument of Surrender, at http://www.yale.edu/Ilawweb/avalon/wwii/ j4.htm (last visited Aug. 23, 2000) (on file with the author). 233. See CIA-The World Factbook 1999--Japan, Central Intelligence Agency, at http://www.odci.gov/cia/publications/factbook/ja.html (last visited Aug. 23, 2000) (on file with the author) (stating that Japan's government is a constitutional monarchy operating under a constitution adopted May 3, 1947). 234. See, e.g., id. (reinforcing the fact that Japan continues to exist based on the Central Intelligence Agency's consideration of Japan as a fimctional nation in the international community). As justification by comparison, the Singapore High Court ruled in Simon v. Taylor that "the German State has never ceased to exist despite Germany's unconditional surrender in 1945." Simon, 1975 WL 45289. 235. See, e.g., The Avalon Project: FirstInstrument of Surrender,supra note 232. 236. See supra notes 120-24 and accompanying text. In fact, Tidwell might cite Columbus-America Discovery Group, Inc. v. The Unidentified, Wrecked, & Abandoned Sailing Vessel for the Fourth Circuit's opinion that shipwrecks "ancient and long lost" might be declared abandoned as the result of a lapse of time or prolonged inactivity on the part of the owner of the vessel. See Jones, supra note 149, at 215 (quoting Columbus-Am. Discovery Group, Inc. v. Atl. Mut. Ins. Co., 974 F.2d 450, 464-65 (4th Cir. 1992)). 2001] CLAIMS TO MILITARY SHIPWRECKS 985

characteristic as a modern-era warship likely means that this argument would not hold water. Despite the uncertainty that surrounds application of abandonment doctrine under United States maritime law to situations involving foreign warships, one notion is clear: U.S. law applies differently depending on the age of the vessel in question. In Columbus-America Discovery Group, Inc. v. The Unidentified, Wrecked, & Abandoned Sailing Vessel," the Fourth Circuit recognized that a recent trend has "seen the law of finds applied to longlost [sic] and abandoned shipwrecks." 8 Yet, as previously mentioned, in United States v. Steinmetz, the Third Circuit recognized the State Department's position that, while warships from the seventeenth and eighteenth centuries may be abandoned by implication of the long passage of time, modern warships from the nineteenth and twentieth centuries should be treated differently. 9 A logical deduction can therefore be made that, in general, nineteenth and twentieth century- era warships will not be treated by U.S. courts as either ancient240 or long-lost vessels due to their relatively young age. Additionally, federal courts have acknowledge that "lack of technology is one factor to consider" in determining whether a sunken warship should be considered "long-lost" as a matter of law.24' More specifically, the impact of the

237. 974 F.2d 450 (4th Cir. 1992). 238. Id. at 460. 239. United States v. Steinmetz, 973 F.2d 212, 222 (3d Cir. 1992) (citing LEICH Memorandum, supra note 17, at 1004). 240. This deduction is also supported by international law. The Third United Nations Conference on the Law of the Sea ("UNCLOS III") has defined "archaeological and historical" shipwrecks as those occurring prior to 1533. See Drew F.T. Horrell, Telepossession is Nine-Tenths of the Law: The Emerging Industry of Deep Ocean Discovery, 3 PACE Y.B. INT'L L. 309, 350 (1991), WL 3 PACEYBIL 309 (citing article 303 of UNCLOS III). As a result, it seems clear that nineteenth and twentieth century shipwrecks are not presumed to be ancient or long-lost under UNCLOS III. 241. Yukon Recovery, L.L.C. v. Certain Abandoned Property, 205 F.3d 1189, 1194 (9th Cir. 2000) (citing Deep Sea Research, Inc. v. The Brother Jonathan, 102 F.3d 379, 388 (9th Cir. 1996), affd in part, vacated in part sub nom., California v. Deep Sea Research, 523 U.S. 491 (1998)). In Yukon, a salvage company (Yukon) appealed a district court's grant of exclusive salvage rights to gold cargo in the shipwreck of the S.S. Islander, lying on the bottom of the inland passage near Juneau, , to another salvage company. Yukon argued that the district court applied the wrong standard of proof, and erred in its ruling on abandonment. The Ninth Circuit affirmed the lower court decision. Id. The Fourth Circuit cited Yukon for this "technology" proposition in Sea 986 BUFFALO LAW REVIEW [Vol. 49 passage of time as to a sunken ship will be tolled where the infancy or "lack of technology would make the search [for it by its original owner] infeasible or futile."242 Turning to the situation of 1-52, Tidwell was able to find the submarine only by using side-scan sonar.243 Although first available in 1967, as late as "the 1970s... sidescan [sic] sonar was still 2 in its infancy." " Given this fact and the previously- mentioned American characterizations regarding the relative age of warships, a court would most likely discount any argument that 1-52 is a long-lost shipwreck, and refuse to apply the law of finds to any claim Tidwell might make. 3. Argument Promoting Scenarios One and Two: Transfer of Title as a Result of Warfare. Third, should Tidwell commence an ownership action regarding 1-52, he would probably be unable to convince a court that the 1-52 was captured from Japan as a result of warfare between Japan and the United States. United States maritime law has long recognized the proposition that capture of an

Hunt. Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 647 (4th Cir. 2000), cert. denied,__ U.S. __, 121 S.Ct. 1079 (2001). 242. People of Ill. ex. rel. Ill. Historic Pres. Agency v. Zych, 710 N.E.2d 820, 826 (IM. 1999) (citing Moyer v. Wrecked & Abandoned Vessel, known as Andrea Doria, 836 F. Supp. 1099, 1105 (D.N.J. 1993); Zych v. The Unidentified, Wrecked & Abandoned Vessel, believed to be the SB Lady Elgin, 755 F. Supp. 213, 216 (N.D. Ill. 1991) (stating that since technology needed to locate and salvage a shipwreck did not exist until the 1980s, the insurer of the ship was not "required to engage in efforts to recover the wreck to avoid abandoning its interest when such efforts would have had minimal chances for success"); Deep Sea Research, 102 F.3d at 388. 243. National Geographic's article about 1-52 describes this aspect of the search: "Tidwell contracted with Sound Ocean Systems of Seattle, Washington, which in turn hired specialists from Meridian Sciences" in order to search "the sea floor with side-scanning sonar.... The sonar printouts on the morning of May 2 revealed a hazy black object surrounded by metal debris, the unmistakable image of a submarine." Vesilind, supra note 12, at 126; see also Broad, supra note 39 (stating that Tidwell found the submarine only by relying on "advanced gear and methods once reserved for the world's militaries"); Girardi, supra note 12 (stating that Tidwell had "the help of Russian salvagers and recently available deep-diving technology"). For more information on how modern technology was the make-or-break element in the search for 1-52, see Guidera, supra note 33 (describing in detail how Meridian Sciences used side- scan sonar, deep-sea imaging technology, modem computers and programs, and navigational science to find 1-52). 244. People, 710 N.E.2d at 826. Additionally, as both Girardi and Guidera intimate, the earliest versions of this revolutionary technology-including side- scan sonar-were available to and used by only the world's military powers, not private salvagers. See Girardi, supra note 12; Guidera, supra note 33. 2001] CLAIMS TO MILITARY SHIPWRECKS 987

enemy vessel divests the enemy of title to that vessel.245 As a result, in United States v. Steinmetz, a district court accepted the argument that the Confederate Government lost title to a Confederate warship during battle where the Confederate warship was rendered unable to escape or to return fire, and thus constructively captured, by a Union warship.246 Using this case as precedent, Tidwell might argue that Japan lost title to 1-52 during the 1944 encounter with the American Avenger because 1-52 was unable to escape the fray or return fire. First, as a factual matter, such an argument would likely fail. In light of the Steinmetz example, although it is doubtful that 1-52 could have escaped from its vulnerable position, it could have returned fire against the Avenger with its twenty-five millimeter antiaircraft guns that pointed skyward from her exposed deck 24 7 -a fact that defeats any constructive capture theory. Second, such an argument would likely fail as a matter of law. As Sea Hunt clearly instructs, "an enemy vessel must actually be seized in order to be forfeited. 248 In fact, the constructive capture

245. See The Alexander, 1 F. Cas. 357 (C.C.D. Mass. 1813) (No. 164), affd, 12 U.S. (8 Cranch) 169 (1814); see also Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 47 F. Supp. 2d 678, 691 (E.D. Va.), mot. to amend denied by No. 2:98CV281, 1999 WL 1293620 (E.D. Va. July 29, 1999), affd in part, rev'd in part, 221 F.3d 634 (4th Cir. 2000), cert. denied, __ U.S.__, 121 S. Ct. 1079 (2001) (finding that "it is within the bounds of the law to confiscate a warship or a merchant vessel belonging to the enemy during a time of war") (subsequent citations omitted); LEICH Letter, supra note 138, at 999 ("In order to have acquired rights to an enemy's warship, it was necessary for a capture to have occurred. Otherwise, title to such a vessel would have to remain in the State to which it belonged at the time of sinking in the absence of abandonment or transfer of proprietary rights in the vessel by the State concerned."). 246. See United States v. Steinmetz, 763 F. Supp. 1293, 1297-98 (D.N.J. 1991), affd, 973 F.2d 212 (3d Cir. 1992). The Third Circuit refused to decide the viability of this constructive capture doctrine on appeal. See Steinmetz, 973 F.2d at 217-18. 247. See Vesilind, supra note 12, at 122, 126 (evidencing an underwater photo of one of 1-52's twenty-five millimeter antiaircraft guns, and an artistic representation of the submarine showing the three mountings of 1-52's twenty- five millimeter antiaircraft guns); cf Japanese Submarines, supra note 41 (indicating that the C(3)-type submarine was armed with two, twenty-five millimeter antiaircraft guns). 248. Sea Hunt, 47 F. Supp. 2d at 691. Of importance to any situation involving 1-52, the State Department has indicated that "a decision on whether the United States has any property rights in any vessel destroyed by its naval forces during World War HI will depend on whether the vessel was actually captured." LEIcH Memorandum, supra note 17, at 1002. 988 BUFFALO LAW REVIEW [Vol. 49 doctrine has never before been accepted by a court in the absence of "actual control over the captured ship's movements by the captor."249 In the case of 1-52, the Americans never took actual control of the submarine. Second, even if 1-52 had been actually captured by the U.S. prior to sinking, commercial salvagers would still not be able to claim title to the wreck. As the State Department has announced, "[wlith respect to any enemy warship actually captured by the United States during World War II, title over such warships would have immediately passed to the United States," and would not be considered abandoned property.250 Therefore, where the constructive capture theory would be inapplicable, it is highly doubtful that a court would find that warfare between the United States and Japan in any way made title to 1-52 available to Tidwell.

B. Abandonment Arguments for Ownership Rights to 1-52 and Her Cargo in Light of United States Maritime Law Developments 1. Differing Standards: Express Abandonment and Implied Abandonment. The heart of any potential legal battle between Japan and Tidwell over the fate of 1-52 however, would likely be the issue of abandonment.251 Should Tidwell commence an ownership action regarding I- 52, he and his team would have to convince a district court that 1-52 has been abandoned by Japan as a matter of law.52 There is no strong consensus in U.S. maritime law as to the exact definition of the term "abandoned."25 3 Yet, U.S.

249. Steinmetz, 973 F.2d at 218. 250. LEICH Memorandum, supra note 17, at 1000. 251. See supra note 120. See also Fairport Int'l Exploration, Inc. v. The Shipwrecked Vessel, known as Captain Lawrence, 177 F.3d 491, 498 (6th Cir. 1999) ("Whether the owner abandoned the ship thus determines which law [salvage or finds] applies, and, subsequently, who owns the ship," and "[tihe ownership of the wreck turns on the meaning of'abandoned.' "). 252. See supra note 231 and accompanying text. 253. See Kang, supra note 146, at 105 ("Thus, the ASA, like international law and U.S. admiralty law, remains ambiguous in its definition of abandonment and its treatment of sovereign vessels. Congress did not codify an explicit definition of 'abandoned,' and as a result 'conflicting case law has subsequently developed over whether shipwrecks are abandoned.' ") (citing HUTT ET AL., supra note 227, at 449); see also California v. Deep Sea Research, Inc., 523 U.S. 491, 508 (1998) (stating cryptically "that the meaning of 2001] CLAIMS TO MILITARY SHIPWRECKS 989 law does recognize that, regardless of the proper definition, courts will apply one of two theories of abandonment- express abandonment or implied abandonment-depending on the facts of the case. 24 Any court settling a controversy between Tidwell and Japan concerning the fate of 1-52 would have to decide which of these abandonment standards to apply. In the Fourth Circuit, as Sea Hunt indicates, "where an owner comes forward to assert ownership in a shipwreck, abandonment must be shown by express acts,"255 and "in such a case abandonment cannot be implied."256 As previously discussed, where Sea Hunt is properly limited to ASA cases,5 it remains unclear as to whether the Fourth Circuit would extend Sea Hunt's rejection of an implied abandonment standard to situations involving foreign warship wrecks located outside the territorial waters of the United States. Furthermore, it is highly questionable as to whether the Fourth Circuit's abandonment precedent would

'abandoned' under the ASA conforms with its meaning under admiralty law"); Fairport, 177 F.3d 491, 495 ("The ASA does not define 'abandoned.' "). Independent definitions of "abandoned" can be dismissed as "unacceptable," "confusing," and "unrealistic." David J. Bederman, Symposium: Building New Regimes and Institutions for the Sea: Historic Salvage and the Law of the Sea, 30 U. MIAMI INTER-AM. L. REV. 99 (1998), WL 30 UMIAIALR 99. For example, the International Law Association's Draft Convention on the Protection of the Underwater Cultural Heritage-ascontained in an article entitled Report: The Draft Convention on the Underwater Cultural Heritage-defines sunken cultural heritage as legally abandoned at the end of "a period of twenty-five years from the discovery of technology sufficient to recover the heritage, or if no technology was available to permit recovery, fifty years from 'the last assertion of interest by the owner' of the 'underwater cultural heritage.' "Id. (citing and quoting Patrick J. O'Keefe & James A.R. Nafziger, Report: The Draft Convention on the UnderwaterCultural Heritage, 25 OCEAN DEV. & INT'L L. 391, 400 (1994)). Bederman has declared that this definition of "abandoned" "is unacceptable due to confusing and unrealistic time constraints," and "creates a new international standard for abandonment that is quite inconsistent with the long-standing general maritime law." Id. To get around this problem, courts such as that in United States v. Steinmetz have been forced to look outside the bounds of case law for authoritative definitions. See Steinmetz, 973 F.2d at 222 n.10 (quoting BLACK'S LAW DICTiONARY 2 (5th ed. 1979)). 254. See Fairport, 177 F.3d at 499-500 (discussing the inferential abandonment test and the express abandonment doctrine). 255. Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 641(4th Cir. 2000), cert. denied - U.S. __, 121 S. Ct. 1079 (2001) (citing Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450 (4th Cir. 1992)). 256. Id. 257. See supra notes 222-23 and accompanying text. 990 BUFFALO LAW REVIEW [Vol. 49 be adopted by any other federal court in either an ASA case or high seas case involving a foreign warship wreck. In Sea Hunt, the Fourth Circuit explicitly rejected applying an implied abandonment standard, and attempted to reconcile its reliance on an express abandonment standard with cases from the First, Fifth, and Sixth Circuits.2 58 Yet, the very Sixth Circuit case that the Fourth Circuit cites in support of its holding actually acknowledges the Sixth Circuit's rejection of "the holding of Columbus- America Discovery Group... which appears to adopt the express abandonment theory." 59 Indeed, recent case law strongly indicates that the Sixth and Ninth Circuits have rejected the Fourth Circuit's lead,"' instead favoring an implied abandonment standard in maritime cases. In fact, five months prior to Sea Hunt, the Fourth Circuit admitted that "the rule [regarding the test for abandonment] in the [Sixth, Ninth, and Fourth] circuits is not the same and the

258. Sea Hunt, 221 F.3d at 641-42; see also supra notes 204-07 and accompanying text. 259. Fairport,177 F.3d at 499 (citing Columbus-Am., 974 F.2d at 464). 260. First, in Fairport InternationalExploration, Inc. v. The Shipwrecked Vessel, known as CaptainLawrence, 177 F.3d 491, after reviewing, inter alia, its own opinion in FairportInternational Exploration, Inc. v. The Shipwrecked Vessel, known as CaptainLawrence, 105 F.3d 1078 (6th Cir. 1997), vacated, 523 U.S. 1091 (1998), the Supreme Court opinion in California v. Deep Sea Research, Inc., 523 U.S. 491 (1998), and the Fourth Circuit's decision in Columbus-America Discovery Group v. Atlantic Mutual Insurance Co., 974 F.2d 450 (4th Cir. 1992), affd in part, vacated in part, rev'd in part, 203 F.3d 291 (4th Cir. 2000), the Sixth Circuit held that a party "may prove by inference that a shipwreck last owned by a private party is 'abandoned,' for the purposes of admiralty law and the ASA." Fairport,177 F.3d at 500. In doing so, the Sixth Circuit also: (1) suggested that the Fifth Circuit rejected "[r]igid adherence to a doctrine requiring express abandonment" in Treasure Salvors, Inc. v. The Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978), Fairport, 177 F.3d at 500; and (2) quoted Moyer v. The Wrecked & Abandoned Vessel, known as Andrea Doria, 836 F. Supp. 1099, 1105 (D.N.J. 1993), for the proposition that "[a]bandonment may be inferred from circumstantial evidence." Fairport,177 F.3d at 500. Second, in Deep Sea Research, Inc. v. The Brother Jonathan, 102 F.3d 379 (9th Cir. 1996), affd in part, rev'd in part sub nom., California v. Deep Sea Research, Inc., 523 U.S. 491 (1998), the Ninth Circuit also rejected the express abandonment theory from Columbus-America by finding that, "[in holding that abandonment could only be found on the basis of an express renunciation of ownership, the Fourth Circuit introduced a significant modification into maritime law." Id. at 387-88. 2001] CLAIMS TO MILITARY SHIPWRECKS 991

Supreme Court has not clarified the question as... Deep Sea Research (Brother Jonathan) indicates."26' Despite the Sea Hunt court's attempted rationalization, clearly there exists a "conflict between the Sixth, Ninth and Fourth circuits regarding the test for abandonment.26 Unfortunately, the Supreme Court has decided not to review Sea Hunt, and thus will not resolve this circuit split during its current Term. In light of this recent development: (1) it is likely that the traditional approach of U.S. maritime law, Sea Hunt, other recent precedent, and common sense reasoning would work in conjunction to defeat any express abandonment arguments by which Paul Tidwell and his team might attempt to convince a U.S. district court that scenario three exists; and (2) it is imperative that the traditional approach of U.S. maritime law and public policy rationale work to defeat an implied abandonment argument by which Tidwell and his team might attempt to divest Japan of ownership rights to 1-52.

2. First Argument Promoting Scenario Three: Express Abandonment Pursuant to Surrender Documents. As Sea Hunt indicates, sufficient evidence of express abandonment may be provided by international agreements."6 Should Tidwell commence an ownership action regarding 1-52, he might argue that, where the definition of abandonment

261. Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 203 F.3d 291, 304 (4th Cir. 2000) (emphasis added). 262. Id. (interpreting case law in light of Deep Sea Research, Inc., 523 U.S. 491)). 263. See also supra note 22 and accompanying text. Compare Bier, supra note 127 ("Pointing to a split in the federal circuits regarding 'when a shipwreck is considered legally abandoned,' [Sea Hunt attorney Peter] Hess declares, 'I think there's a good chance of the Supreme Court hearing this case.' ") with Supreme Court of the United States, Docket for 00-652, at http:l/www.supremecourtus.gov/docketl00-652.htm (last visited Feb. 22, 2001) (detailing the disposition of the Sea Hunt appeal). 264. Cf Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 643-44 (4th Cir. 2000), cert. denied, _ U.S. _, 121 S. Ct. 1079 (2001) (finding that the Treaty of 1763 did not present clear and convincing evidence of express abandonment in this case, but leaving open the door for a successful challenge given proper treaty evidence); see also Roach, supra note 4 ("The practice of States confirms the well-established rule of international law that title to [sunken] vessels and aircraft is lost only by ... international agreement.") (citing, in part, Multilateral Treaty of Peace With Japan, Sept. 8, 1951, T.I.A.S. No. 2490, at 3181). 992 BUFFALO LAW REVIEW [Vol. 49 includes acts of "surrender,"' Japan's execution of various surrender documents2 66 presents clear and convincing evidence of Japan's express abandonment of all her armed forces, including 1-52. At the end of World War II, Japan was forced to accept the Allied Powers' unconditional terms of surrender as delineated in the Potsdam Declaration. Pursuant to paragraph two of the Instrument of Surrender, Japan unconditionally surrendered to the Allied Powers "all Japanese armed forces and all armed forces under the 2 6 Japanese control wherever situated." ' Additionally, pursuant to article one of the surrender instrument executed with the Supreme Allied Commander, South East Asia, Japan's Supreme Commander, Japanese Expeditionary Forces, Southern Regidns, unconditionally surrendered "all Japanese sea, ground, air and auxiliary forces under his command or control ... ,,26S Tidwell would first have to demonstrate that these clauses clearly applied to 1-52-in the condition in which she existed at the time of the signing of the documents-in order to legitimize any claim that she was expressly abandoned by Japan. Although 1-52 was sunk by the Americans more than a year prior to Japan's surrender, if Japan were to argue that 1-52 retained her status as a warship,269 then a court might imply that she was still part

265. In United States v. Steinmetz, 973 F.2d 212 (3rd Cir. 1992), the court relied on Black's Law Dictionary for a definition of the term "abandonment." Id. at 221 n.10. According to the court, "[a]bandonment is defined as the 'surrender, relinquishment, disclaimer, or cession of property or of rights. Voluntary relinquishment of all rights, title, claim, and possession, with the intention of not reclaiming it.' " Id. (quoting BLACK'S LAW DICTIONARY 2 (5th ed. 1979) (emphasis added). 266. These documents included the First Instrument of Surrender, Sept. 2, 1945, Japan-U.S.-China-U.K.-U.S.S.R.-Austl.-Can.-Fr.-Neth.-N.Z., The Avalon Project: First Instrument of Surrender, available at http://www.yale.edu/ lawweb/avalon/wwiij4.htm (last visited Aug. 23, 2000) (on file with the author) [hereinafter First Instrument of Surrender], and Instrument of Surrender of Japanese Forces Under the Command or Control of the Supreme Commander, Japanese Expeditionary Forces, Southern Regions, Within the Operational Theater of the Supreme Allied Commander, South East Asia, Sept. 12, 1945, The Avalon Project: Instrument of Surrender,available at http://www.yale.edu/ lawweb/avalon/wwiij3.htm (last visited Aug. 23, 2000) (on file with the author) [hereinafter Southern Instrument of Surrender]. 267. First Instrument of Surrender, supra note 266, at para. 2. 268. Southern Instrument of Surrender, supra note 266, at art. 1. 269. In order for Japan to claim that it never lost title to 1-52 because special treatment is afforded warships, then Japan would have to present the argument that 1-52 remained a warship even after she was sunk by the 2001] CLAIMS TO MILITARY SHIPWRECKS 993 of the Japanese sea forces under Japanese command and control, and thus subject to these clauses. Where the Instrument of Surrender covered all Japanese forces "wherever situated,' surrender might have pertained to I- 52 even as she rested at the bottom of the Atlantic. These clauses might satisfy the definition of abandonment because Japan executed the agreements with no intention of reclaiming the relinquished armed forces. In the preamble of the Security Treaty Between the United States and Japan,2 71 Japan admits that, subsequent to its signing the Multilateral Treaty of Peace With Japan ("Peace 2 Treaty"), 11 it "will not have the effective means to exercise its inherent right of self-defense because it has been disarmed."27' In addition, article nine of the Constitution of Japan provides that, as a result of forever renouncing war as an offensive tactic of the nation, Japan will never maintain land, sea, and air forces.274 Interpreted together, Tidwell might argue, these provisions demonstrate that the Japanese government, intending its voluntary relinquish- ment of all armed forces at the end of World War II to be permanent, publicly renounced-and thus abandoned-all ownership rights to its existing, offensive armed forces, including 1-52. By contending that Japan surrendered all its armed forces around the world as a result of executing these documents, Tidwell might attempt to convince a court that (1) the surrender documents are clear and convincing evidence of Japan's express abandonment of 1-52, and thus (2) that title over the wreck has been lost by Japan pursuant to the law of finds. 5

Americans. For an analysis of the implications of such an argument, see STRATI, supra note 9, at 220. 270. See supra note 267 and accompanying text. 271. Sept. 8, 1951, U.S.-Japan, The Avalon Project: Security Treaty Between the United States and Japan; September 8, 1951, available at http'/www.yale.edu/lawweb/avalon/diplomacy/japanOOl.htm (last visited Aug. 23, 2000) (on file with the author) [hereinafter Security Treaty]. 272. Sept. 8, 1951, T.I.A.S. No. 2490. 273. Security Treaty, supra note 271, at pmbl. (emphasis added). 274. KENPO, art. 9, Takada Toshihiro, THE CONSTITUTION OF JAPAN, available at http://www.ntt.com/japan/constitution/english-Constitution.html (last visited Aug. 23, 2000) (on file with the author). 275. Such a result necessarily begs the question, "Who then took title to 1-52 and the rest of the Japanese armed forces?" Although the answer may appear to be the Allied Powers, this is not clear. See, e.g., LEICH Memorandum, supra note 17, at 1002. ("[T]he United States ordered the destruction of all combatant vessels of the Japanese fleet, with the exception of destroyers and certain 994 BUFFALO LAW REVIEW [Vol. 49 This argument would likely fail, however, because Japan's execution of various surrender documents ultimately does not present clear and convincing evidence of Japan's express abandonment of 1-52. A federal court hearing this argument would likely determine that the surrender clauses do not apply to 1-52 for two reasons. First, while laying on the floor of the Atlantic Ocean at the end of World War II, the remains of 1-52 were not clearly under the "command or control" of either Japan or the Japanese military.276 Second, as discussed in greater detail in Part V.B.4, a court might also find that the wrecked remains of 1-52 did not meet the legal definition of a warship at the time of Japan's surrender.277 Given both of these findings, a court hearing this potential dispute would not likely hold that, upon her sinking, 1-52 was still part of the "armed forces" that Japan surrendered to the Allies, and thus explicitly abandoned by Japan as a result of executing the surrender documents. Instead, the court would most likely rely on traditional principles of U.S. maritime law, and agree with the State Department that, in the absence of explicit abandonment,

the owner of property in distress or lost on navigable waters, is never divested of his ownership. This is true whether the property is derelict and floating on the water, a stranded wreck breaking up on a beach or where it is reposing fathoms deep. The salvor who rescues such property does do for the benefit of the owner .... The salvor does not become the owner of the salved property .... He merely has a maritime lien granted by the general maritime law to surface vessels of lesser tonnage. Statement by Acting Secretary Acheson on Japanese Vessels Available for Delivery to U.S., U.K., U.S.S.R., and China, XVI Dept. of State Bulletin, April 20, 1947, at 717. The final disposition of the vessels seized after the surrender is not known, but it is likely that title to any such vessels would have passed to the United States when U.S. forces took possession of them and Japanese rights in such vessels would have ceased.") Id. Although who is the titleholder would be an interesting and critical question for Tidwell, this Comment will not provide an answer. 276. Neither of the surrender documents specifically defined either "command" or "control." See First Instrument of Surrender, supra note 266; Southern Instrument of Surrender, supra note 266. Yet, according to Black's Law Dictionary, "command" is defined as, inter alia, the "[plower to dominate and control," while "control" is defined as, inter alia, "[tihe ability to exercise a restraining or directing influence over something." BLACK'S LAw DICTIONARY 267, 329 (6th ed. 1991). A court will likely agree that Japan did not have either the power or the ability to influence the remains of 1-52 in any meaningful way at the end of World War H. 277. See infra notes 290-301 and accompanying text. 2001] CLAIMS TO MILITARY SHIPWRECKS 995

ensure that his reward for saving property will be satisfied out of the property saved.2 78 Therefore, if Tidwell should commence an ownership action regarding 1-52 and present to a court the express abandonment argument outlined above, the court would likely grant him only salvage rights to 1-52.2'9

3. Second Argument Promoting Scenario Three: Express Abandonment Pursuant to Peace Treaty. Should Tidwell commence an ownership action regarding 1-52, he might also argue that the Peace Treaty28° provides clear and convincing evidence of Japan's express abandonment of I- 52. In order to settle outstanding questions at the conclusion of World War II, Japan and the Allied Powers executed a treaty in which Japan made clear its intentions.281 In this document, Japan granted the Allied Powers "the right to seize, retain, liquidate or otherwise dispose of all property, rights, and interests of... Japan and Japanese nationals,... and.., entities owned or controlled by Japan or Japanese nationals," according to the laws of the Allied Power(s) involved.282 Tidwell might argue that this provision applies to the sunken submarine. If not abandoned as a result of the surrender documents, 283 then 1-52 remained the property of

278. LEICH Memorandum, supra note 17, at 1003; see also Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 641 (4th Cir. 2000). "Under admiralty law, where an owner comes forward to assert ownership in a shipwreck, abandonment must be shown by express acts.... '[S]hould an owner appear in court and there be no evidence of an express abandonment,' title to the shipwreck remains with the owner.... This principle reflects the long standing admiralty rule that when 'articles are lost at sea the title of the owner in them remains.' " Id. (citing and quoting Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 974 F.2d 450, 461 (4th Cir. 1992) and quoting The Akaba, 54 F. 197, 200 (4th Cir. 1893)) (internal citations omitted). 279. See, e.g., Marex Intl, Inc. v. The Unidentified, Wrecked & Abandoned Vessel, 952 F. Supp. 825, 828 (S.D. Ga. 1997) ("The law of salvage applies to shipwrecks that have not been expressly abandoned by their owners.... Under the law of finds, the finder gains title, but under the law of salvage the finder is entitled only to a salvage award.") (citing both Columbus-America, 974 F.2d at 459, and Chance v. Certain Artifacts Found & Salvaged from the Nashville, 606 F. Supp. 801, 804 (S.D. Ga. 1984)) (internal citation omitted). 280. Multilateral Treaty of Peace with Japan, supra note 272. 281. See id. at 3171. 282. Id. at 3181, 3183. 283. See supra notes 275-79 and accompanying text. 996 BUFFALO LAW REVIEW [Vol. 49 the Imperial Japanese Navy-and thus Japan-at the time this Peace Treaty was executed. Consequently, 1-52 might be an example of a piece of property to which, in accordance 2 with the definition of abandonment, 11 Japan voluntarily relinquished its rights pursuant to the Peace Treaty. In fact, retired United States Navy Captain J. Ashley Roach has advised that this particular provision of the Peace Treaty represents one manner in which title to sunken warships and aircraft can be lost through international agreement.285 Along these lines, Tidwell might attempt to convince a court that the Peace Treaty provides clear and convincing evidence of Japan's express abandonment of I- 52, and thus that Japan has lost title to the wreck pursuant to the law of finds.286 Once again, this argument would likely fail because Japan's execution of the Peace Treaty ultimately does not present clear and convincing evidence of Japan's express abandonment of 1-52. As the Fourth Circuit indicated in Sea Hunt, interpretations of treaties made by their parties should be given significant weight by federal courts reviewing such treaties.8 According to the Department of

284. See supra note 265 and accompanying text. 285. See Roach, supra note 4, at n.14. In defense of his previously- mentioned statement that "[tihe practice of States confirms the well-established rule of international law that title to [sunken military] vessels and aircraft is lost.., by international agreement," Captain Roach states that, [flor example, the Treaty of Peace with Japan, Sept. 8, 1951, provides in chapter V, article 14(a)2(I) that each of the Allied Powers "shall have the right to seize, retain, liquidate or other-wise [sic] dispose of all property, rights and interests" of Japan "which on the first coming into force of the present Treaty were subject to its [the Allied Powers] jurisdiction." See id. (citing 3 U.S.T. 3181). The battleship Nagato and light cruiser Sakawa are two examples of Japanese ships the title to which Japan lost as a result of signing the Treaty of Peace with the Allied Powers. After the conclusion of the Treaty of Peace, the U.S. symbolically captured Nagato in Tokyo Bay to mark the surrender of the Imperial Japanese Navy. John L. Eliot, In Bikini Lagoon Life Thrives in a Nuclear Graveyard,NAT'L GEOGRAPHIC, June 1992, at 78. As a clear demonstration of ownership (and out of vengeance for the fact that Nagato was Admiral Yamamoto's flagship during the attack on Pearl Harbor), the U.S. berthed both captured ships at Bikini Atoll for nuclear tests Able and Baker in July 1946, which sent both ships to the bottom. See id. at 72, 75, 78-79. 286. Once again, the question of, "Who exactly took title to 1-52 when the Peace Treaty was signed?" is raised by this scenario. See supra note 275. 287. See Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 646 (4th Cir. 2000), cert. denied, __ U.S. , 121 S. Ct. 1079 (2001) ("While courts interpret treaties for themselves, the meaning given them by the 2001] CLAIMS TO MILITARY SHIPWRECKS 997

State, although "certain Japanese vessels were seized and destroyed by the Allies after the Japanese surrender,... the Japanese Peace Treaty does not directly address ..28,8 the status of vessels that were destroyed during the war. Even if a court were to find that the Peace Treaty covered the situation of 1-52, there is no indication that any of the Allied Powers actually exercised their "right" to seize this piece of Japanese property.289 It is highly unlikely that any federal court hearing a dispute between Tidwell and Japan regarding 1-52 would find that the Peace Treaty presents clear and convincing evidence of an explicit abandonment act on the part of Japan that in any way divested Japan of title to the submarine wreck. Instead, such a court would most likely follow traditional principles of U.S. maritime law and grant Tidwell only salvage rights to 1-52.9 °

4. Third Argument Promoting Scenario Three: Implied Abandonment Where 1-52 Can No Longer be Considered a Warship. Should Tidwell commence an ownership action regarding 1-52, it remains unclear whether a federal court would afford 1-52 special protection as a sovereign warship-protection that would work to defeat any implied abandonment argument made by Tidwell. As previously mentioned, customary international law generally requires more than implications of abandonment in order for the law of finds to apply to a situation involving a wrecked warship departments of government particularly charged with their negotiation and enforcement is given great weight.") (quoting Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (refusing to interpret a treaty provision in isolation) (internal quotation marks omitted); see also id. (citing El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999), for the proposition that "[p]ostratification understandings of the contracting parties are traditionally considered as aids to treaty interpretation," and quoting Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir. 1996), for the statement, "[tireaties are contracts between sovereigns, and as such, should be construed to give effect to the intent of the signatories"). 288. LEICH Memorandum, supra note 17, at 1002. 289. As to this issue, the State Department offers the previously-mentioned guidance: "The final disposition of the vessels seized after the [Japanese] surrender is not known, but it is likely that title to any such vessels would have passed to the United States when U.S. forces took possession of them...." LEICH Memorandum, supra note 17, at 1002. As a result, it can be logically deduced that, even if the United States or another Allied power had exercised this "right" to seize 1-52, title to the wreck would have passed directly to that Allied power, and 1-52 could not be considered abandoned property. 290. See supra note 279 and accompanying text. 998 BUFFALO LAW REVIEW [Vol. 49 in international waters."1 The State Department agrees that,

under well-established State practice, States generally do not lose legal title over sunken warships through the mere passage of time in the absence of [explicit] abandonment.... Although abandonment may be implied under some circumstances, United States warships that were sunk during military hostilities are presumed not to be abandoned and are considered not subject to

salvage in the29 2 absence of express consent from the United States Government. Precedent outside the Fourth Circuit has witnessed federal courts applying an implied abandonment standard to sunken vessels in a variety of situations.2 93 Yet, as previously stated, U.S. courts have recognized the notion of sovereign immunity with regard to U.S. ships, holding that the Department of the Navy retains custody of its ship and aircraft wrecks despite the passage of time, and regardless of whether they are lost in U.S., foreign, or international waters.2 4 In Sea Hunt, the Fourth Circuit presented the opinion that, for reasons of international comity, 95 where foreign nations assert sovereign interest in their sunken warships, federal courts should not divest such nations of title under an implied abandonment standard.29 Sea Hunt can be

291. See supra note 142 and accompanying text. 292. LEICH Memorandum, supra note 17, at 1005. 293. See supra note 206 and accompanying text. 294. Supra note 145 and accompanying text. 295. Black's Law Dictionary defines "comity" as, inter alia, "a willingness to grant a privilege, not as a matter of right, but out of deference and good will." BLACK'S LAW DICTIONARY 267 (6th ed. 1990). As the Third Restatement of the ForeignRelations Law of the United States indicates, [c]omity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws. RESTATEMiENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 101 cmt. e (1997) (quoting Hilton v. Guyot, 159 U.S. 113, 163-64 (1895)). 296. See Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 647 (4th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1079 (2001) (stating that "Spain has vigorously asserted its interest in the wreck of LA GALGA.... In light of these circumstances, even a finding of implied 2001] CLAIMS TO MILITARY SHIPWRECKS 999 viewed as an attempt on the part of the Fourth Circuit to clarify one of the uncertainties of U.S. maritime law mentioned in this Comment297 by extending to sunken foreign warships the special sovereign immunity protection favored by customary international law, but only afforded sunken U.S. warships under U.S. law. Given the Fourth Circuit's position, in order to sustain an implied abandonment argument in any ownership action regarding 1-52, Tidwell might have to convince a federal court that the submarine is not entitled to this special sovereign immunity protection. One way of doing so would be to demonstrate that, where the remains of 1-52 no longer meet the literal definition of a warship, but instead fit more closely the definition of a derelict, 1-52 lost her status as a warship once she sank.298 As a result, this theory continues,

abandonment would be improper.... Spain's ownership over [its] vessels... is required by... general principles of international comity"). By comparison, the State Department has indicated that salvors should consider foreign warship wrecks to be protected by sovereign immunity only where a foreign nation requests special protection for its warship wrecks specifically because such vessels either are considered by the nation to be war graves or contain explosive material. See LEICH Letter, supra note 138, at 999 ("ITihe U.S. government does not grant [permission to salvage sunken U.S. warships] with respect to ships that contain the remains of deceased servicemen or explosive material. It is the view of the Department of State that requests from foreign countries to have their sunken vessels similarly respected by salvors should be honored."). A potential salvor must then ask and answer the question, does the foreign nation consider its sunken warships to be war graves? See supra note 139. 297. See supra note 154 and accompanying text. 298. The question of whether sunken vessels retain their status as "ships" has caused significant debate in the legal and academic communities due to the potential implication for sensitive political, economic, scientific, military, and security issues. STRATI, supra note 9, at 220. In fact, two schools of thought have emerged from this debate concerning wrecked vessels and their cargoes: (1) "all sunken vessels, whether State-owned or not, have ceased to be 'ships' and, therefore, are not subject to the exclusive jurisdiction of their flag States," id. (citing, inter alia, W. Riphagen, Some Reflections on "FunctionalSovereignty," 6 N.Y.I.L. 121, 128 (1975) ("Turning now to sunken ships it is understandable that such 'objects' cannot simply retain indefinitely the status under international law of a ship, even though in several cases, such 'objects' have been salvaged, repaired, and operated again as 'ships.' "); and (2) "sunken vessels retain their legal status as ships with all the subsequent implications." Id. (citing, inter alia, M.G. Collins, The Salvage of Sunken Military Vessels, 10 INT'L LAwrER 681 (1976)). Yet, Anastasia Strati indicates that "[e]ven under this [second] approach, however, opinions vary considerably," and may advocate only a qualified retention of sovereign immunity. Id. at 235 n.29 (citing I. von Munch, Shiffwracks Vdlkerrechtliche Probleme, 20 ARCHV DES VOLKERRECHTS 183 (1982)). Consequently, "[i]t is [also] debatable... whether sunken warships 1000 BUFFALO LAW REVIEW [Vol. 49 1-52 should be treated like any other sunken, non-military vessel, and thus be subject to the same implied abandonment standard applied to sunken non-military vessels in recent cases. Pursuant to this implied abandonment theory, Tidwell might first argue that, where the term "warship" has specific meaning in international law, 1-52 in its present condition would not likely satisfy this definition. Under the United Nations' Convention on the Law of the Sea, the term "warship" is defined as "a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline."299 The wreck of 1-52, however, can only satisfy part of this definition, at best. The submarine still bears external markings of nationality"'0 and may even still be technically under the command of naval officer Kameo Uno. Yet, as a non-navigable vessel located on the bottom of the sea, 1-52 can no longer be and State-owned vessels ... still qualify as ships... enjoying [sovereign] immunity." Id. at 221 (emphasis in original). Despite the Sea Hunt dicta and the State Department position, a court adopting this first school of thought might go as far as to find that 1-52 can no longer be considered a ship, let alone a warship. According to Black's Law Dictionary, a ship is defined as a "vessel of any kind employed in navigation." BLACK'S LAw DICTIONARY 1377 (6th ed. 1990). Thus, whereas ships are generally considered to be navigable vessels, "[s]unken vessels lying on the sea floor cannot qualify as 'ships,' as they are not used for navigation nor are they capable of being so." STRATI, supra note 9, at 221. In fact, in United States v. Smiley, 27 F.Cas. 1132 (C.C.N.D. Cal. 1864) (No. 16,317), the Circuit Court for the Northern District of California held that "when a [sailing] vessel is destroyed, and goes to the bottom, the jurisdiction of the country over it necessarily ends, as much so as it would over an island which should sink into the sea." Id. at 1135. In turn, sunken vessels "are not considered as ships with all the consequent implications... [and tihe same applies to warships." STRATI, supra note 9, at 221. Therefore, a court might actually find that 1-52, as a sunken vessel incapable of navigation, should not be considered a "ship," let alone a warship entitled to sovereign immunity. 299. Convention on the Law of the Sea, supra note 113, at 1275 (quoting article 29). 300. Tidwell's business partner, Guy Zajonc, reported that the submarine "is wonderfully preserved. Even the paint on the red Rising Sun is still visible and the 1-52 painted on the side is still visible." Girardi, supra note 12. For a visual depiction of this fact, see Jonathan Blair's photographs in the October 1999 National Geographic.See Vesilind, supra note 12, at 115, 121. 2001] CLAIMS TO MILITARY SHIPWRECKS 1001 considered a ship,30 ' and clearly is no longer manned by a crew.11 Therefore, since the wreck of 1-52 cannot satisfy the entire definition of a "warship," it may no longer be entitled to such classification in the eyes of the law. Continuing with this theory, Tidwell might next argue that, where 1-52 might be best described today as "a vessel found at sea in a position of danger and without any one of its crew on board," the law will likely consider her remains to be a derelict."' As a derelict, 1-52 would not be entitled to special protection under the doctrine of sovereign immunity."' Thus, Tidwell might argue that Japan has implicitly abandoned the submarine, and that he is entitled to ownership rights to both 1-52 and her cargo as the salvor in constructive possession of the wreck. Once again, this argument, however intricate, must ultimately fail. Precedent from any federal court accepting these arguments would be incredibly detrimental to the State Department's goal of protecting sunken United States warships abroad, U.S. foreign relations, the foreign affairs decision-making process, and traditional principles of maritime law regarding war graves. Furthermore, any decision transferring title of 1-52 absent evidence of express abandonment by Japan would simply not make practical sense. Should Tidwell commence an ownership action regarding 1-52 and theorize that the submarine is no longer entitled to sovereign immunity protection, a court should reject this implied abandonment argument for public policy reasons.

301. See supra note 298. 302. On a morbid note, although 1-52 sank with a capacity crew on board, the flesh and bones of these men have disintegrated over the years. Tidwell in fact reported to the Washington Post in 1995 that he and his team "don't expect to find any remains there. The Titanic showed there were no remains ....The reasons are a combination of depth and the water being mineral poor, so everything breaks up and goes away." Bennett, Submarine's Gold Cargo Sought, supra note 83. In fact, in talking of his explorations of the R.M.S. Titanic and the Bismark, Dr. Robert Ballard has agreed that any human body sinking to the ocean's floor would have been consumed by albino crabs and worms by this point. ROBERT D. BALLARD, EXPLORATIONS: MY QUEST FOR ADVENTURE AND DISCOVERY UNDER THE SEA 277, 374 (1995). As a result, it is most likely that the bodies of the crew are no longer on board the submarine. See Vesilind, supra note 12, at 130. 303. 68 AMi. JUR. 2D Salvage § 53 (1993) (citing Petition of Esso Shipping Co., 122 F. Supp. 133 (S.D. Tex. 1954)). 304. Captain Roach indicates that sovereign immunity is only available for situations involving sunken warships and military aircraft. Roach, supra note 4. 1002 BUFFALO LAW REVIEW [Vol. 49 First, as Sea Hunt precisely indicates, the United States' ability to secure protection for the sites of its warship wrecks around the world is directly related to its ability to guarantee the same protection for the wreck sites of other nations' warships." As previously mentioned, during district court hearings regarding the Sea Hunt case, Spain argued that its sunken warships were entitled to the exact same treatment afforded U.S. warships under U.S. maritime law."0 6 Where U.S. courts refuse to accept such requests, the State Department admits, "[a]ny contrary precedent in this area would almost certainly have negative legal and policy implications against American vessels that have been sunk in past years."3 °7 If a court should award Tidwell ownership rights to 1-52 absent evidence of express abandonment, such a decision would explicitly recognize that a double standard does exist in U.S. maritime law regarding the treatment of U.S. and foreign warship wrecks." It is doubtful that foreign governments would look favorably upon such a clear statement. Instead, it is highly likely that, in retaliation, such nations would refuse to defend U.S. rights to American warships sunk in foreign and international waters.0 9 Therefore, U.S. foreign

305. See Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 647 (4th Cir. 2000), cert. denied, _ U.S. __ 121 S. Ct. 1079 (2001). ("The United States 'is the owner of military vessels, thousands of which have been lost at sea, along with their crews. In supporting Spain [in Sea Hunt], the United States seeks to insure that its sunken vessels and lost crews are treated as sovereign ships and honored graves, and are not subject to exploration, or exploitation, by private parties seeking treasures of the sea.' Amicus Curiae Br. of U.S. at 1[, Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000) (Nos. 99-2035 & 99-2036)]. Protection of the sacred sites of other nations thus assists in preventing the disturbance and exploitation of [the United States's sacred sites] ... ."). Id. 306. See Clancy, Spain, Salvor Vie, supra note 160 (reporting that "Spain argued that both [wrecks] were warships and, in the same way the U.S. has regarded sunken ships near foreign coasts, never abandoned," and that a Spanish judicial counsel has stated that "[w]e are talking about 420 military people who died, and we expect the United States to give to them the same respect and the same treatment we give to its military people"). 307. LEICH Memorandum, supra note 17, at 1006. 308. See supra notes 153-59 and accompanying text for a discussion of the possible existence of a double standard in U.S. maritime law regarding the issue of abandonment and warships. 309. Cf Clancy, Spain, Salvor Vie, supra note 160 (reporting that, in the words of Justice Department lawyer Barbara O'Malley regarding the Sea Hunt appeal, the U.S. "government is concerned that if Spain doesn't win its claim, 2001] CLAIMS TO MILITARY SHIPWRECKS 1003

relations and the nation's ability to protect American rights to U.S. warship wrecks located in international and foreign waters would likely be irreparably harmed if a court were to award Tidwell ownership rights to 1-52 and her cargo pursuant to an implied abandonment argument. Second, awarding Tidwell ownership of 1-52 pursuant to an implied abandonment argument would interfere in the Executive Branch's conduct of foreign affairs by violating the letter and spirit of the Joint Statement issued by the United States, Japan, and five other nations in 1995."'° By issuing the Joint Statement, these nations attempted to guarantee sovereign immunity for each other's sunken state vessels. 1' According to the Fourth Circuit, where the "Constitution charges the political branches with the conduct of foreign affairs[,J" 3 "it is 'not for the courts to deny an immunity which [the United States] government has seen fit to allow.' ""' If the United States were prevented from making good on this sovereign immunity guarantee to Japan as the result of a court decision in favor of Tidwell, the Joint Statement would lose effectiveness, and this particular American foreign policy interest, as pursued by the State Department, would clearly be harmed. Third, any decision in Tidwell's favor would fly in the face of established traditions in maritime law regarding war graves-traditions that in many ways have been incorporated into U.S. maritime law and practiced by the U.S. government. One school of thought holds that, where salvaging a wreck in which passengers and crew died is tantamount to disturbing a cemetery, treasure hunters should respect and leave undisturbed that which they find in and around such wrecks as sacred items resting in a grave with the deceased.314 Combining the doctrine of the country would find it difficult to protect our U.S. warships sunk in Spanish waters") (internal quotation marks omitted). 310. Supra note 143 and corresponding main textual discussion. 311. See Joint Statement, supra note 143. 312. Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 643 (4th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1079 (2001) (citing Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 109-10 (1948)). 313. Id. (quoting Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (involving an in rem action against a foreign-owned merchant vessel)). 314. See Nicholson, supra note 155, at 140 ("Some of the most adamant opponents to the exploration of shipwrecks are the relatives of those who lost their lives when the ship sank. These relatives believe that disturbing the 1004 BUFFALO LAW REVIEW [Vol. 49 sovereign immunity with this notion of respecting maritime graves, it can be inferred that, under maritime law, "sunken state vessels and aircraft containing crew remains are.., entitled to special respect as war graves and must not be disturbed without the explicit permission of the sovereign state."315 This same general principle is also part of U.S. policy and U.S. maritime law."1 By-issuing the Joint Statement, and clearly with an eye toward maritime traditions, the State Department has acknowledged that where sunken "[war]ships and aircraft may be the last resting place of many sailors and airmen who died in the service of their nations," they are "historical artifacts of special importance and entitled to special protections. " " Adopting this wreck is similar to disturbing a cemetery. This extreme form of preservation implores treasure hunters to leave wrecks in their natural state and to consider treasure from shipwrecks as sacred items placed in a grave with the deceased.") (citing HistorianBlames Titanic Row on Snobbery, TORONTO STAR, Aug. 3, 1987, at D7); see also PICKFORD, THE ATLAs OF SHIPWRECKS, supra note 31, at 8 (stating that "slome believe that all shipwrecks should be left alone as graves and not violated for commercial purposes"). Yet, even this school of thought has its critics. Pickford has indicated that, although this argument carries force "particularly when applied to recent losses.., the response is often more emotional than logical." Id. 315. ENCYCLOPEDIA, supra note 15, at 399; see also Roach, supra note 4 ("Once hostilities have ended, sunken state vessels and aircraft containing crew remains are also entitled to special respect as war graves and must not be disturbed without the explicit permission of the sovereign.") (citing, inter alia, Droingoole & Gaskell, Who Has a Right to Historic Wrecks and Wreckage?, 2 INT'L. J. CULTURAL PROP. 217, 230-32 (1993)). One example of the practical implications of this maritime tradition is the Birkenhead Agreement. In 1989, Great Britain and South Africa entered into an agreement recognizing (1) the war grave status and British ownership of, but (2) South African control of access to the site of, the wreck of H.M.S. Birkenhead. Birkenhead was a Royal Navy troop ship sunk off the Cape Colony in 1852 with the loss of 445 lives. See Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of South Africa regarding the salvage of H.M.S. Birkenhead, Pretoria, Sep. 22, 1989, U.K.T.S. 3 (1990), Cm. 906, 60 BRIT.Y.B. INTL L. 671 (1990). 316. See Koerner, supra note 3, at 50 (stating that "[tihe United States, says Jim Gould [sic], a lawyer representing Spain, wants to accord foreign ships the same treatment it would like for its own sunken vessels [because] '[t]he important principle is that these ships are military gravesites, and anything that is done with them must respect those sensitivities' "). 317. Neyland, supra note 134 (quoting Joint Statement, supra note 143); see also United States v. Steinmetz, 973 F.2d 212, 222 (3d Cir. 1992) (explaining that U.S. policy stems from "sensitivity to the fact that wrecks of warships are the watery graves of American war dead") (quoting Brief for Appellee at 7, United States v. Steinmetz, 973 F.2d 212 (3d Cir. 1992) (No. 91-5582)) (internal 2001] CLAIMS TO MILITARY SHIPWRECKS 1005 position, the Fourth Circuit found in Sea Hunt that "[n]othing in the law of admiralty suggests that Spain has abandoned its dead by respecting their final resting place at sea."3 18 As a result, findings of implied abandonment of foreign warship wrecks by U.S. courts are improper because they would do harm to U.S. maritime law policy and tradition regarding war graves. 19 Finally, where U.S. and foreign warships sunk during the same military campaign often lie intermingled on the ocean floor, a decision holding that foreign nations may indeed lose title to their sunken vessels by implication- despite the fact that the United States cannot lose title in similar fashion3 0--would be impractical. As the technological capabilities of maritime explorers continue to grow as we enter the twenty-first century, it is increasingly likely that the world will attempt to resurrect its deep- water naval casualties. For example, Dr. Robert Ballard and the National Geographic Society have recently used state-of-the-art technology to locate and explore the deep- water wrecks of four Japanese and one American aircraft carriers, and one American destroyer, sunk during the Battle of Midway."'

quotation marks omitted). As one example of this "special protection," Dr. Robert Ballard has indicated that, according to U.S. Navy regulations, "[i]f any member of a wreck survey team thinks he sees evidence of human remains, all the survey's data is classified Top Secret until it can be examined and that possibility eliminated and the material approved for release to the public." BALLARD, supra note 302, at 287. 318. Sea Hunt, 221 F.3d at 647. 319. See id. ("Spain has vigorously asserted its interest in the wreck of LA GALGA and wishes to maintain it as a sacred military gravesite. In light of these circumstances, even a finding of implied abandonment would be improper."). As the Fourth Circuit points out, only in cases where Spain failed to make similar claims to Spanish shipwrecks did courts find evidence of abandonment. Id. (citing Treasure Salvors, Inc. v. The Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330, 337 (5th Cir. 1978) ("The modern day government of Spain has expressed no interest in filing a claim in this litigation as a successor owner."), and Lathrop v. The Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 956 (M.D. Fla. 1993) (stating that "no one.., asserted an interest in the alleged vessel")). 320. See Sea Hunt, 221 F.3d at 642 ("United States vessels may only be abandoned by an express, unambiguous, and affirmative act."); see also supra notes 148-49 and accompanying text. 321. See generally Midway @ nationalgeographic.com, wysiwyg:// METAFEATURE.56/http'J/www.nationalgeographic.com/features/98/idway/mi ssioncommand.html (collected Aug. 24, 2000) (on file with the author) 1006 BUFFALO LAW REVIEW [Vol. 49 Further impressive discoveries will likely bring with them novel legal challenges on the part of eager commercial salvors. For his part, Ballard is confident that there is no need to secure any additional protection to prevent the salvage of these wrecks, given legal precedent and the doctrine of sovereign immunity. 2 If any court were to accept implied abandonment arguments regarding foreign warship wrecks, however, it is possible that, although the two American ships sunk at Midway would clearly remain protected, the Japanese ships might then be at the mercy of commercial salvors. Yet, where all six vessels were sent to the bottom as the result of warfare, in the same battle, and3 within approximately the same area of the Pacific Ocean, 2 it makes little logical sense for the law to differentiate among them in terms of the applicability of an implied abandonment standard. Instead, these ships, alike from death onward in all meaningful manners, deserve to be treated with the same degree of reverence-and thus sovereign immunity-regardless of nationality. Should Tidwell commence an ownership action regarding 1-52 and theorize that the submarine is no longer entitled to sovereign immunity protection, a court must reject this implied abandonment argument for public policy reasons.

VI. CONCLUSION Notwithstanding the continued development of United States maritime law, one principle, expressed creatively by

(displaying information on Ballard's mission). See supra note 2 for more information on the Battle of Midway. 322. See Midway / Ballard @ nationalgeographic.com, wysiwyg:// CONTENT.METAFEATURE.101/http://vww.nationalgeographic.com/features/9 8/midway/ballard int_5.html (collected Aug. 24, 2000) (on file with author) (recording that Ballard answered the question, "Bob, do you plan to take any actions in the future to preclude anyone else from getting salvage rights on your finds?" with "Our major action is to work with various national and international organizations to enact, with the United Nations, protection under the Law of the Sea. Now, ironically, these aircraft carriers, are protected already. Any warship is protected forever. Japanese carriers belong to Japan. And the Yorktown belongs to the United States. It's the really ancient ships- like the Roman ships-... [that] are up for grabs, and we're concerned about protecting those ships.") (emphasis in original). 323. See BALLARD & ARCHBOLD, supra note 2, at 12, 16, 114-15 (indicating that, on the same expedition, Ballard searched approximately 750 square miles of the Pacific Ocean for the Japanese carriers Akagi, Kaga, and Soryu, the American carrier Yorktown, and the American destroyer Hammann). 20011 CLAIMS TO MILITARY SHIPWRECKS 1007 Rafael Conde, the deputy chief of mission at the Spanish Embassy, remains unassailable: "[a] warship is a warship is a warship."'24 Clearly, foreign nations may expressly abandon their sunken warships at any time, and for any reason. In turn, it is proper for United States courts to award ownership rights to salvors in possession of these shipwrecks under such circumstances. Yet, it is not the duty of United States courts to divest foreign nations of the rights to their sunken warships where such nations have not clearly indicated their intent to give up title by express act. Such divestitures by U.S. courts would only jeopardize the United States' ability to secure protection for its warship wrecks abroad by establishing rules that simply do not make practical or moral sense. Instead, by clearly and consistently rejecting even novel implied abandonment arguments made by salvors in search of ownership rights to foreign warship wrecks, United States courts can emphasize the practical importance of the principles of comity and sovereign immunity, demonstrate universal respect for sunken warships' status as war graves, and successfully defend the similar national interests of the United States of America.

POSTSCRIPT 25 According to the United States Supreme Court's website,326 on October 19, 2000, Sea Hunt, Inc. filed a petition for a writ of certiorari from the Supreme Court regarding the Fourth Circuit Court of Appeals decision in Sea Hunt, Inc. v. The Unidentified, Shipwrecked Vessel or Vessels. The petition in this matter, titled Sea Hunt, Inc. v. Kingdom of Spain, named the Kingdom of Spain as Respondent. On January 11, 2001, the Kingdom of Spain filed its response brief. On February 20, 2001, the Supreme Court issued an order denying Sea Hunt's petition." I began to think about all of these issues and write this Comment in the Fall of 1999, over a year before there was any indication that Sea Hunt and the question of the proper

324. Clancy, Spain Takes Claim, supra note 156. 325. Added by the author on February 21, 2001. 326. Supreme Court of the United States, Supreme Court of the United States, at http://www.supremecourtus.gov (last visited Feb. 22, 2000). 327. Supreme Court of the United States, Docket for 00-652, at http://www.supremecourtus.gov/docket/00-652.htm (last visited Feb. 22, 2000). 1008 BUFFALO LAWREVIEW [Vol. 49 test for abandonment would work their way into a Fourth Circuit decision, let alone a petition for a writ of certiorari filed with the Supreme Court of the United States. Since then, there has been a significant amount of legal discourse on the various issues developed in this Comment: at least six cases have been decided by various federal courts that touch on the issues tackled in this Comment, 2 8 and over seventeen law review and journal articles have been written discussing either Sea Hunt, issues raised by that case, or issues tackled in this Comment.329 Every attempt

328. See Sea Hunt, Inc. v. The Unidentified, Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1079 (2001), Intl Aircraft Recovery, L.L.C., v. Unidentified, Wrecked & Abandoned Aircraft, 218 F.3d 1255 (11th Cir. 2000); Yukon Recovery, L.L.C. v. Certain Abandoned Property, 205 F.3d 1189 (9th Cir. 2000); Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 203 F.3d 291 (4th Cir. 2000); Trueman v. The Historic Steamtug New York, Her Engines, Tackle, Furniture, Apparel, Etc., 120 F. Supp. 2d 228 (N.D.N.Y. 2000); Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659 (5th Cir. 2000). 329. See Christopher L. Meazell, Being and Embeddedness: The Abandoned Shipwreck Act's Historical Proxy Is All at Sea, 34 GA. L. REV. 1743 (2000); Justin S. Stern, Smart Salvage: Extending TraditionalMaritime Law to Include Intellectual Property Rights in Historic Shipwrecks, 68 FORDHAM L. REV. 2489 (2000); Patrick J. Long, The Good Samaritan and Admiralty: A Parable of a Statute Lost at Sea, 48 BuFF. L. REv. 591 (2000); Lawrence D. Bradley, Jr., U.S. Treasure Trove Law, 10-SPG EXPERIENCE 24 (2000); David J. Bederman, Admiralty Jurisdiction, 31 J. MAR. L. & COM. 189 (2000); David J. Sharpe, Admiralty Procedure, 31 J. MAR. L. & CoM. 217 (2000); Edith H. Jones and Kenneth G. Engerrand, Recent Developments in Admiralty Law in the United States Supreme Court, the Fifth Circuit, and the Eleventh Circuit, 24 TUL. MAR. L.J. 741 (2000); Mark R. Baumgartner, Federal Jurisdiction over State Claims to Shipwrecks: Should the Eleventh Amendment Go Down with the Ship?, 8 WM. & MARY BILL RTs. J. 469 (2000); Sean D. Murphy, Law of the Sea and International Waterways: Jurisdiction over Salvage Claims Outside U.S. Territory: RMS Titanic, 94 AM. J. INT'L L. 125 (2000); Mark A. Wilder, Application of Salvage Law and the Law of Finds to Sunken Shipwreck Discoveries, 67 DEF. CouNs. J. 92 (2000); D. David Lorello, Jr., The Abandoned Shipwreck Act of 1987: NavigatingThrough the Fog, 35 GONZ. L. REv. 75 (2000); Jeffrey T. Scrimo, Raising the Dead: Improving the Recovery and Management of Historic Shipwrecks, 5 OCEAN & COASTAL L.J. 271 (2000); Paul Neil, California v. Deep Sea ResearcL- Leashing in the Eleventh Amendment to Keep Sinking Shipwreck Claims Afloat, 27 PEPP. L. REv. 657 (2000); Robert D. Peltz, The Titanic's Legacy: The History and Legal Developments Following the World's Most Famous Maritime Disaster, 12 U.S.F. MAR. L.J. 45 (2000); Clarissa A. Kang, CharteringThrough Protectionfor Historic Shipwrecks Found in U.S. Territorial Waters: Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or Vessels, 19 VA. ENVTL. L.J. 87 (2000); Terence P. McQuown, An Archaeological Argument for the Inapplicability of Admiralty Law in the Disposition of Historic Shipwrecks, 26 WM. MITCHELL L. REv. 289 (2000); Pamela J. Tibbetts, The Long Voyage of the Lusitania, 19 N.Y.L. SCH. J. INT'L & 2001] CLAIMS TO MILITARY SHIPWRECKS 1009 has been made during the past two years to keep this Comment and its propositions as up-to-date as possible, but for publication reasons, the research on these issues was effectively closed as of October 16, 2000, with Sea Hunt updates continuing into the early part of 2001. Nonetheless, what began as, in the words of one University at Buffalo Law School professor, a discussion about "a pretty settled area of the law" has turned out to be a Comment dealing with an area of law that has been in an increased state of flux. I am disappointed that the Supreme Court has decided to deny certiorari regarding the Sea Hunt appeal, and thus has refused to resolve the current circuit split regarding the proper test for abandonment. I can only hope that future federal court action, either directly or by application, will work to clarify the rights of private salvagers (such as Paul Tidwell) under U.S. law vis-&-vis foreign warship wrecks located in international waters.

Comtp. L. 285 (1999).