By: C. Claire Armagnac, Journal of Transnational Law and Policy Associate Editor
U.S. federal courts’ rulings on shipwreck salvage cases, such as Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 760 (1982) and Odyssey Marine Exploration, Inc. v. Unidentified Shipwreck Vessel, 657 F. 3d 1159 (11th Cir. 2011) have set the stage for future treasure-hunters to approach foreign countries’ governments prior to searching in their waters. People planning to search for shipwrecks in Florida waters can obtain an Exploration or Discovery permit from Florida’s Division of Historical Resources of the Department of State, but even with a permit the searchers’ rights to what they find are limited. Under both state and federal law, items found in territory subject to government jurisdiction belong to the government unless the searcher enters into a contract with the government that transfers all or part of the wreck’s contents to the searcher. The complicated nature of this process and the legal battles that ensue if a large amount of treasure is actually found leave many feeling discouraged and hesitant to invest the time and money required to determine what lies offshore.
In light of Florida and federal regulations, treasure-seekers have turned to the waters off of other countries’ coasts. If a wreck is found in international waters, i.e. waters beyond the scope of any country’s jurisdiction, the wreck’s finders have a chance at rightfully claiming what they find. This was the case in Treasure Salvors, Inc. where salvage legend Mel Fisher successfully secured his rights to a 17th-century Spanish galleon found sunk 40 nautical miles west of Key West, Florida. The site was beyond government jurisdiction, so the State’s claim to the wreck was unsuccessful.
In recent years, however, the fact that a wreck is found in international waters does not necessarily mean that the finder will prevail in claiming the wreck’s contents. Such was the case in Odyssey Marine Exploration, Inc, where a wrecked Spanish warship and its contents were awarded to Spain despite the fact that Odyssey, a private U.S.-based salvage company, found the wreck in international waters 100 miles west of the Straits of Gibraltar. The court relied on the premises set forth in the 2004 Treaty of Friendship and General Relations between the United States of America and Spain, which establishes that a wreck and its contents are one and the same for purposes of establishing a sovereign property interest. Under that Treaty, the U.S. is entitled to a sunken U.S. warship and its contents discovered by Spain and vice versa. Odyssey had to allow U.S. authorities to seize the wreck’s contents and turn them over to Spain, and Odyssey may have to pay Spain’s legal costs as well.
In situations where a U.S. company finds a wreck in international waters and no Friendship and General Relations Treaty exists between the U.S. and the country that originally sailed the wrecked vessel, the viability of a finder’s claim is unclear. A 2009 UN convention banned the sale of artifacts from wrecks that are over 100 years old, which means that in the 42 countries that ratified the convention the profitability of treasure-seeking is reduced. The U.S. and Britain have not ratified the convention, and recent reports indicate that at least one U.S. company has contracts with Britain that allow it to search for and profit from British wrecks.
In this dynamic, exciting area of law the future is as murky as a coral reef in a storm, and treasure-seekers will likely continue to face legal battles as they search for wrecks and adventure both here and abroad until an international standard is set.
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