INTERNATIONAL ANDNATIONAL LAWSRELATING TOARCHAEOLOGYUNDERWATER 51
salvors sued for a salvage award. In determining whether
the salvage regime was applicable, the court noted that ‘the
artefacts came to rest on the clay bottom of the Gulf of
Mexico, thirty to forty feet under water. Eventually four
to ten feet of sand covered them. Under these conditions,
the items were effectively impervious to weather condi-
tions above the surface of the sea, and the sand prevented
deterioration under-water. The items remained in this
state of equilibrium until 1967 when Platoro commenced
recovery operations.’ It would appear that the court rec-
ognized that the artefacts were in fact protected and
in no immediate danger. However, the court ruled that
as a matter of law, marine peril did exist. The court
stated that ‘the Espiritu Santowas still in marine peril after
its position was discovered’ as ‘it is far from clear that the
sand would remain sufficient protection from the various
perils of the Gulf of Mexico’.
Case study: Marine peril in Canadian
Admiralty Courts
In a Canadian case, Her Majesty v.Mar-Dive 1997 AMC
1000, the court held that a wreck embedded in the
bottom of Lake Erie was not in marine peril, and there-
fore the salvors of a number of artefacts from the wreck
were not entitled to a salvage award. In fact, the court held
that the activities of the salvors had damaged the wreck
and significantly damaged its archaeological integrity,
and that proposed further action would not save the
vessel but cause the wreck to be in even greater danger.
Case study: RMS Titanic
Probably the most famous maritime disaster in the
history of western society, the Titanicsank in 1912 with
the loss of over 1500 lives. She came to rest in inter-
national waters close to Newfoundland, Canada. The
discoverers of the wreck believed that she should remain
as she was found as a memorial to those who had per-
ished in the disaster. However, there was no international
mechanism to enforce this, and in 1987 a salvage com-
pany undertook an expedition to the wreck and began to
recover items. These items were taken into the US, where
the US Admiralty Courts applied the doctrine of con-
structive possession in order to establish jurisdiction over
the wreck-site. The doctrine of constructive possession
means that if part of an item is in the jurisdiction of
the court, the court will consider the entire item to be
subject to the court’s jurisdiction. This was an unpre-
cedented extension of national maritime jurisdiction,
which not all international lawyers accept as valid in
international law. The court found the salvors to have
a possessory right to the wreck and were entitled to a
salvage award, or if the wreck was not claimed, to
ownership of the items recovered on the basis of the law
of finds. The US, UK, France and Canada were concerned
that salvage would be undertaken in an inappropriate
manner and entered into negotiations to adopt an inter-
national convention which would allow these states to pre-
vent their nationals or their vessels from undertaking
such inappropriate salvage activities. The salvors of the
wreck, however, have agreed that they would only recover
items from the debris field and would not sell any of the
recovered artefacts. The negotiations between these four
states have subsequently been successfully concluded. The
four nations are now incorporating the resulting agree-
ment into their national legislation. However, the agree-
ment cannot be enforced against any citizens or flagged
vessels whose state is not a party to the agreement.
Consequently, the case of the Titaniccan still be said to
highlight the lack of any regulatory measures in inter-
national waters.Case study: HMS Birkenhead
HMS Birkenhead, an iron-hulled paddle-wheel frigate,
was carrying troops to the eastern frontier of South
Africa when it was wrecked off the coast of the Cape Colony
in 1852. The vessel was crowded with troops and passengers
when it began to sink. The British troops stood fast
while the passengers were taken off on the lifeboats.
From this heroic stand, the naval traditional of placing
the women and children first in the lifeboats was born.
Of the men, 445 were lost in the disaster. In 1983 the South
African Government, who considered the vessel to be the
property of the Government as it lay in South African
territorial waters, issued a salvage permit. The UK Govern-
ment, however, also claimed ownership. The dispute was
later resolved by means of an agreement between the two
countries. This agreement allowed investigation and
salvage of the vessel to continue but acknowledged that
ownership remained vested in the British Crown.Case study: The Central America
The Central America, a side-wheel steamship, was lost
in international waters off the coast of South Carolina,
USA, in 1857. Lost with the vessel were 423 lives and
US$2,189,000 in gold from the California gold rush.
The gold had been insured with a number of insurance
companies in the US and UK, who subsequently paid
out on all claims. In 1987 a salvage consortium, the
Columbus-America Discovery Group, discovered the wreck.
On recovery of a vast amount of gold, a number of
insurance companies who had either paid out in 1857 or
had at some point taken over older insurance companies,
claimed ownership of the gold. The salvors argued that
the insurance companies had abandoned ownership,