US Salvage Law as Applied to Historic Shipwrecks: A Critique and Australian Case Study
01st December 2006
Master of Law (LLM), School of Law, The University of Western Australia, March 2005
Despite an emerging international consensus for the need to protect historically significant shipwrecks, exemplified by the 2001 UNESCO Convention for the Protection of the Underwater Cultural Heritage, the United States federal courts continue to encourage commercial exploitation of historic shipwrecks in US waters through the application of salvage law and the related law of finds. The history of these legal doctrines makes them inappropriate to the discourse of archaeology when applied to the disposition of historic shipwrecks. US federal courts continue to employ these doctrines primarily for two reasons: (1) the widespread belief that US waters contain large amounts of submerged gold, silver and other precious items from shipwrecks dating back to the era of New World exploitation, and (2) the misconception that commercial recovery and sale of these treasures is consistent with good archaeological practice and heritage management, and thus in the nation’s best interest.
While salvage law affords some control over the manner in which submerged artefacts are located, recovered, conserved and disposed of, commercially-driven artefact recovery results in the loss of valuable archaeological data. Moreover, salvage law offers no protection to the great majority of shipwrecks in US waters that are of no commercial interest, leaving them vulnerable to casual looting.
Many nations, Australia in particular, have enacted laws to protect all historically significant shipwrecks in their waters from salvage, looting and souvenir hunting. The US Congress has also enacted protective legislation for shipwrecks on federal property, but should apply such protection to all historic wrecks in US waters, as Australia has done. There is no constitutional impediment to Congress adopting legislation similar to Australia’s comprehensive protection. The US, like the Commonwealth of Australia, inherited from English law the sovereign prerogative to wreck, and the US Congress needs only to enact protective legislation to give effect to this prerogative. The only impediment to such legislation is lack of the requisite political will when confronted by an organised and vocal commercial salvage industry.Joel Gilman
Salvage Law as Applied to Historic Shipwrecks: A Critique and Australian Case Study
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