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The Potential for Private Claims of Ownership to Military Shipwrecks in International Waters: the Case of Japanese Submarine I-52

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The Potential for Private Claims of Ownership to Military Shipwrecks in International Waters: the Case of Japanese Submarine I-52 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 Submarine 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 destroyers, 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, treasure hunting 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 Battle of Jutland 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 Grand Fleet, 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 light cruiser, 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 destroyer, 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.
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