law of salvage
The Atocha sinks of the coast of Florida
Public Policy

Who Own Archaeological Treasures and Artifacts

Despite popular misconceptions, archaeological discoveries are not made by swashbuckling men wearing fedoras and carrying whips. By today’s standards, Indiana Jones would be viewed as an opportunistic relic hunter. Today, archaeologist are careful and methodical, paying special attention to site preservation as much as the antiquities that can be removed. Discovering historical and cultural heritage sites requires a painstaking amount of research, large capital investment, highly educated and trained individuals, and very often governmental participation, yet in many cases, the laws from individual countries or international treaties leave questions as to who the owner of a discovery might be or who, if anyone, can profit from it.

Ownership of Archaeological Treasures is Determined by Conflicting Laws

International law, international treaties, and the laws of a given country all govern ownership of historical treasures and cultural heritage artifacts, which, unfortunately, are often in conflict with one another. To add to the confusion, treaties are only followed by the countries that ratify them with the most egregious offenders often opting out. The result is that ownership of an artifact may be determined on where it is located.  For example, an artifact discovered in Egypt is the property of the Egyptian government and is not legally allowed to be removed from the country without permission.  However, if an artifact is smuggled out to a country that does not recognize that law, then the smuggler may retain ownership. However, if the owner, or even a new owner, were to bring the item into a country that recognizes Egypt”s law, such as a treaty country, then the artifact could be confiscated and sent back to Egypt.

In other cases, treaties may include clauses that allow ratifying countries to selectively disregard certain provisions, weakening them significantly. So, once new treasure finds are announced, it may be very hard to contain looters that have a means of removing treasures to non-treaty countries, who may also destroy the historical site in their rush to quickly retrieve and exit the area.

The 2001 Convention for the Protection of the Underwater Cultural Heritage

A good example of the inconsistencies and confusion around the ownership of cultural heritage artifacts can be found in the Convention for the Protection of the Underwater Cultural Heritage, which was fostered by The United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2001 and ratified in 2009 after an exhaustive debate on many of the provisions. Underwater cultural heritage can be defined as all traces of human existence that lie or have lain underwater and have a cultural or historical character. This includes three million shipwrecks such as the Titanic, or the 4,000 shipwrecks of the sunken fleet of Kublai Khan. There are also sunken ruins and cities, like the remains of the Pharos of Alexandria, Egypt – one of the Seven Wonders of the Ancient World – and thousands of submerged prehistoric sites.

Cultural Heritage
One of sunken boats near England that is not under protection due to lack of resources.

One of the leading principles of the 2001 UNESCO Convention is the absolute prohibition on the recovery of the underwater cultural heritage for the purpose of making a profit. Under the Convention, cultural heritage is not a commercial commodity but an outstanding cultural asset that deserves protection, not exploitation. However, that doesn’t preclude some type of reward for the discovery. The Convention also vehemently discourages unguided excavation, preferring “in situ” preservation, which basically means leave it alone until trained archaeologists can get to its excavation. Intrusive activities must be minimized and any unnecessary disturbance of human remains be avoided.

The convention also dictates certain process requirements for excavation.  Prior to any activity at a site, project designs must be submitted to competent authorities.  The plan must show that funding is at a level required to complete all stages of the project design, including conservation, curation, and publication. Projects must be managed by a qualified underwater archaeologist with proven scientific competence, and the project plan must include an environmental component that ensures the seabed and marine life are not unduly disturbed.

However, despite all the requirements of the Convention, it is not legally binding and no means of enforcement is provided. While signatories agree to abide by these rules, they may pick and choose to do so depending upon the situation.

As of 2018, only 60 countries have ratified the UNESCO 2001 Convention with countries like the United States, Egypt, and several countries around the Meditteranean opting out, relying on their own treaties or internal laws instead. The United Kingdom has also opted out due to the expense required to protect the 600 wrecks (of 5307 total known wrecks) that the Convention would deem as requiring formal protection.  Currently, the UK has only 46 of those sites currently protected. The UK believes that is better to focus efforts and resources on protecting the most important and unique examples. Without the formal protections for its sites, those wrecks may be free to plunder or at the very least are unguarded, allowing looters to retrieve valuable historical artifacts and bring the goods to countries without formal treaties with the UK.

Other countries have ratified the convention but skirt the edges of the rules. A year after Italy joined the Convention in 2010, the Italian National Institute of Nuclear Physics melted down 120 lead ingots from a Roman wreck found off Sardinia. The lead, having been submerged in water for so long, had approximately 100,000 times less radioactivity that traditional lead making it ideal to shield laboratories against radiation during research into dark matter. Technically, that action violates the UNESCO Convention as the artifacts were used for commercial purposes but since the Convention has no enforcement mechanism, there is little recourse against Italy for their infraction.

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With only 60 countries currently ratifying the treaty, a good portion of undersea sites remain unprotected where ownership will depend on the laws of the local country or in the case of undersea artifacts, the laws of salvage or other maritime law.

The Law of Salvage

Private enterprise relies on the Law of Salvage or the Law of Finds, both of which are a subset of underwater cultural heritage that applies specifically to maritime vessels. Originally, the Law of Salvage arose as a way to encourage the voluntary assistance for ships in impending danger with the aim of rescuing life and returning the salvaged goods to the stream of commerce. In return for their successful efforts, the salvors received a monetary reward. The Law of Finds, on the other hand, regulates ownership of abandoned ships.

The rules of maritime salvage have been generally uniform across countries, but each country maintains certain idiosyncrasies endemic to their legal system. In the United States, we have a distinct body of law known as Admiralty Law or Maritime Law, which governs maritime questions and offenses. Most admiralty and maritime claims are initiated through the Federal Courts, not state courts, and do not have jury trials.  Until recent times, payment for salvage was restricted to a reward for saving lives or property from the sea. Salvors received compensation commensurate with what they saved.

However, many salvage operations did not provide enough for salvors to even recover their expenses, which resulted in ships not assisting other ships when in trouble. In an attempt to overcome the problem, a new Convention was proposed. The International Convention on Salvage gives monetary awards for those who employed skill and efforts to prevent or minimize damage to the environment during a salvage operation and allowed salvors to at least recover expenses whenever there was a threat of damage to the environment. But it also went a step further by implicitly including the rescue of ancient shipwrecks in its scope. However, certain provisions conflict with some of the provisions of the UNESCO Convention, so the Salvage Convention allows signees to opt-out of provisions regarding “cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed.”

This is a big win for salvors because it provides the impetus needed to recover older historical wrecks. For salvaging a wreck, whether modern or historical, salvors only need to show that the ship was in marine peril, which doesn’t necessarily mean in current peril, i.e. sinking or in distress but is defined more broadly to include those wrecks at risk or degradation or loss.

In court proceedings over salvage of the Lusitania, (the Lusitania was the largest passenger ship in the world when it was sunk by a German U-Boat at the start of World War 1) the Court stated, “underwater shipwrecks are usually considered in marine peril because of the risk of loss.” If known wrecks and their historical artifacts remain on the ocean bottom, they are subject to damage or loss from environmental conditions as well as pirates who might destroy the sites, so they are considered “in peril” under the terms of the Salvage Convention.

Antiquities
Coin from the Atocha

Unfortunately for salvors, successfully salvaging a ship and then showing that the ship was in peril is only the first step in the legal wrangling necessary to actually receive a reward.  In the United States, salvors don’t actually receive ownership of the recovered items, but instead, have a lien against the property equal to the amount of the salvage award.  They cannot just take the salvaged goods and sell them on the open market. First, the salvage amount must be determined, which depends upon a number of factors, including the value of the property, the degree of risk involved, and the skill with which the salvage was conducted. For salvage of historic shipwrecks, the archaeological integrity of the work performed may also be considered.  The determination and enforcement of the lien can only be done through the courts, by filing a complaint in federal court and then holding a trial to determine the amount of the award.

The Law of Finds

Therefore, making a claim under the Law of Finds, (basically a “finders keepers” law) is usually easier. The Law of Finds only requires a determination that the wreck is abandoned but that is not always easy.  For historical wrecks, the passage of time and/or the absence of attempts by the owner to recover the property are methods of proof but there are also many reasons for not being able to look for a sunken ship, including not having access to the requisite technology. So proving evidence of abandonment can be difficult if the opposing side wants to maintain ownership. Additionally, where a state vessel is involved, the court will generally require that the property is expressly abandoned by the owner, meaning they have to declare affirmatively that it is abandoned.  That is probably not going to be the case for many historical wrecks.

One caveat to the general salvage laws and treaties is that the United States has its own rules. The Abandoned Shipwrecked Act of 1987 gives the title of all shipwrecks within U.S. waters to the United States.  U.S. territorial waters extend at least three miles from the coastline and include all the internal water bodies such as the Great Lakes. So, if the remains of a ship, whether a United States vessel or one from a foreign government is recovered in U.S. waters, then the Law of Finds does not apply and ownership is held by the United States.

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Ownership of Archaeological Treasures Still Remain an Open Question

The underwater treaties and laws are merely an example of how difficult it is to create clear ownership of some historical artifacts. There are many other laws surrounding treasures and artifacts throughout the world. Unfortunately, raising capital to mount an expedition or a search for a known, but lost, historical site is hard without clear worldwide ownership in the fruits of the discovery.

Consider the plight of Mel Fischer in one of the most famous salvage cases in history. After 16 years of hunting, Mel Fischer discovered the wreck of the Nuestra Señora de Atocha (“Our Lady of Atocha“) off the Florida Keys. The Atocha was the lead vessel of a fleet of Spanish ships that sank in 1622, carrying copper, silver, gold, tobacco, gems, jewels, jewelry, and indigo from Colombia, Panama, and Cuba, bound for Spain. However, after his discovery, the State of Florida laid claim to the treasure and forced Fisher into a salvage reimbursement contract requiring 25% of the found treasure go to the state. After eight years of litigation, the U.S. Supreme Court ruled in favor of Fisher.

The following historical treasures, cities, and wrecks are just a few that have yet to be discovered:

Cases like the Atocha show and even darker reality; even those with a seemingly clear right to treasure or other cultural heritage items they discover usually find themselves in a long court battle with some outside player wishing to lay claim. Where there is a lot of money involved there will be legal challenges.  Mel Fischer not only had problems with the State of Florida but with his investors, as well. He also became the problem for Jay Miscovich and Steve Elchlepp. The two friends bought a treasure map off a Key West Drifter, and within days found themselves with 150 pounds of pristine emeralds. A lawsuit was filed against them by nonother than Mel Fisher who claimed that the emeralds were from the Atocha and part of his salvage rights.

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About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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