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Congress Enacts Increased Protections for Sunken Military Craft

Published online by Cambridge University Press:  27 February 2017

David J. Bederman
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Extract

The domestic and international legal status of warships and military aircraft submerged in United States waters or in international waters has been quite contentious of late. It has resulted in some notable litigation in U.S. courts, a presidential statement on U.S. policy, official lodgings of positions by foreign governments with the United States, a proposed international convention drafted by the United Nations Educational, Scientific and Cultural Organization (UNESCO), and other developments that have previously received notice in the pages of this Journal. In a somewhat surprising turn, Congress, in October 2004, adopted as part of the National Defense Authorization Act for Fiscal Year 2005 a set of provisions known as the Sunken Military Craft Act (SMCA). This essay briefly traces the trajectory of developments in this sector of international law, analyzes the provisions of the SMCA, and offers a critique of the underlying policy and legal assumptions of that statute in light of those developments.

Type
Current Developments
Information
American Journal of International Law , Volume 100 , Issue 3 , July 2006 , pp. 649 - 663
Copyright
Copyright © American Society of International Law 2006

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References

1 Sea Hunt v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d634 (4th Cir. 2000), cert, denied, 531 U.S. 1144 (2001), summarized in Michael White, Case Report: Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 95 AJIL 678 (2001); Int’l Aircraft Recovery, LLC v. Unidentified, Wrecked & Abandoned Aircraft, 218 F.3d 1255 (11th Cir. 2000); Steinmetz v. United States, 763 F.Supp. 1293 (D.N.J. 1991), aff’d, 973 F.2d 212 (3d Cir. 1992), cert, denied, 507 U.S. 984 (1993); Hatteras, Inc. v. The U.S.S. Hatteras, 1984 American Maritime Cases [A.M.C.] 1094 (S.D. Tex. 1981), aff’d, 698 F.2d 1215 (5th Cir. 1982). The writer was counsel for the salvors in the Steinmetz and Sea Hunt litigations.

2 William, J .Clinton, Statement on United States Policy for the Protection of Sunken Warships (Jan. 19, 2001)Google Scholar, 37 Weekly Comp. Pres. Doc. 195 (Jan. 22, 2001), available at <http://www.gpoaccess.gov/executive.html>.

3 Communication from the German Foreign Ministry (Oct. 30, 2003), Communication from the Government of Japan (Sept. 13, 2003), Communication from the Government of the Russian Federation (Oct. 3, (2003), Embassy of Spain, Washington, D.C., Note 128 (Dec. 19, 2002), Communication from the United Kingdom Foreign and Commonwealth Office (July 4, 2003), reprinted in 69 Fed. Reg. 5647 (Feb. 5, 2004).

4 Convention on the Protection of the Underwater Cultural Heritage, Aug. 3, 2001 Google Scholar, Arts. 1(8), 7(3), 10(7), 12(7), 41 ILM 40 (2002), available at <http://www.unesco.org/culture/laws/underwater/htmleng/eonvention.shtml> [hereinafter UNESCO CPUCH] (not yet in force).

5 Sean, D. Murphy, U.S.–France Agreement Regarding the Sunken Vessel La Belle, Contemporary Practice of the United States, 97 AJIL 688 (2003)Google Scholar [hereinafter La Belle Practice Note]; Guido, Carducci, New Developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage, 96 AJIL 419 (2002)Google Scholar; Sean, D. Murphy, Ownership of Sunken Spanish Warships, Contemporary Practice of the United States, 94 AJIL 678 (2000)Google Scholar.

6 Ronald, W. Reagan National Defense Authorization Act for Fiscal Year 2005 Google Scholar, Pub. L. No. 108–375, div. A, tit. XIV (passed Oct. 8, 2004; signed into law Oct. 28, 2004), 118 Stat. 2094 (codified at 10 U.S.C.A. app. § 113 (West 2005)) [hereinafter SMCA].

7 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982 Google Scholar, Art. 303(1), 1833 UNTS 397, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea With Annexes and Index, UN Sales No. E.83.V5 (1983)Google Scholar [hereinafter LOS Convention].

8 See id., Arts. 2, 33, 303(2).

9 See Bernard, H. Oxman, Marine Archaeology and the International Law of the Sea, 12 Colum.–VLAJ.L. &Arts 353 (1988)Google Scholar.

10 LOS Convention, supra note 7, Art. 56(1)(a) (limiting coastal state sovereign rights and jurisdiction to “natural resources”).

11 See id., Art. 87(1).

12 Id., Arts. 303(1), 149; see Eke, Boesten, Archaeological and/or Historic Valuable Shipwrecks in International Waters 50–55 (2002)Google Scholar; Ashley Roach, J., Sunken Warships and Military Craft, 20 Marine Pol’y 351, 352 (1996)Google Scholar.

13 LOS Convention, supra note 7, Art. 303(3). The International Convention on Salvage, Apr. 28, 1989, Art. 30(1)(d), 1953 UNTS 193, does allow states parties not to apply the salvage regime to property that is “maritime cultural property of prehistoric, archaeological or historic interest,” but only a handful of states have elected to do so.

14 unesco cpuch, supra note 4, Art. 7(3).

15 Id., Art. 10(7).

16 Id., Art. 12(7).

17 LOS Convention, supra note 7, Art. 29. See the earlier version of this provision in the 1958 Convention on the High Seas, Apr. 29, 1958, Art. 8(2), 13 UST 2312, 450 UNTS 82.

18 LOS Convention, supra note 7, Arts. 107, 110(5), 111(5), 224.

19 With respect to immunities and state responsibility, see id., Arts. 31, 32, 42(5), 95, 96.

20 Id., Art. 236.

21 Problems of definition of naval auxiliaries and related vessels have been recognized in U.S. practice. See Jurisdiction over Vessels, [1981–88] 2 Cumulative Digest of U.S. Practice in International Law §5, at 1382 Google Scholar.

22 One of the assumptions of a rule of special status for warships is that the state of original ownership is still extant. In large degree, such a rule would benefit only a handful of European naval powers that have enjoyed a continuous existence since the beginning of the early modern period; namely, Portugal, Spain, the Netherlands, France, Britain, Sweden, and Russia, as well as the United States. Obviously, that assumption is not applicable to Athenian triremes, Venetian galleys, or Hanseatic League cogs.

23 The approach of the 1982 LOS Convention was essentially replicated in the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, supra note 4. See id., Art. 1(8) (‘“State vessels and aircraft’ means warships, and other vessels or aircraft that were owned or operated by a State and used, at the time of sinking, only for government non–commercial purposes, that are identified as such and that meet the definition of underwater cultural heritage.”).

24 Declaration of Paris, Apr. 16, 1856, Art. 1, 115Consol. TS 1, 15 Martens, Nouveau Recueil (ser. 1) 791, 1 AJIL Supp. 89 (1907) (“Privateering is, and remains, abolished.”)Google Scholar; see also 11 Verzijl, J. H. W. Et Al., International Law in Historical Perspective 168–71 (1992)Google Scholar (for state practice after the declaration); 1 William, Blackstone, Commentaries on the Laws of England 385 n.12Google Scholar ( William, Carey Jones ed., 1976 photo reprint, Bancroft–Whitney 1915)Google Scholar (1769) (editor’s note). But see Proclamation of April 26, 1898, 30 Stat. 1770, 1771 (1898) (“the policy of this government will be not to resort to privateering, but to adhere to the rules of the Declaration of Paris”).

25 For a contemporary consideration of this problem, see the arguments of counsel in The Prins Frederik, (1820) 165 Eng. Rep. 1543, 1548, 1552 (Adm.).

26 One treatise notes that sunken warships remain the property of the state, unless expressly abandoned. 1 Oppenheim’s International Law 1165 & n.2 (Robert Jennings & Arthur Watts eds., 9th ed.1996). Interestingly, this position is at variance with the one taken earlier in this treatise:

[I]t must be emphasised that men–of–war [that is, warships] are State organs only so long as they are manned and under the command of a responsible officer, and, further, so long as they are in the service of a State. A shipwrecked man–of–war abandoned by her crew is no longer a State organ . . . .

1 Lassa, Oppenheim, International Law: A Treatise 851–52 (Hersch, Lauterpacht ed., 8th ed. 1955)Google Scholar (emphasis added). This passage was quoted with approval in the United States government’s own Digest of United States Practice in International Law. Immunity of Warships and Noncommercial State–Owned or –Operated Vessels, 4 Whiteman Digest §3, at 633–34. Moreover, an earlier version of this official Digest indicated that property and territory could be abandoned by states and “that an intention to abandon must clearly appear but that this intention need not be expressed and may be gathered from the circumstances surrounding the supposed withdrawal of state authority.” Abandonment, 1 Hackworth Digest §64, at 442 (emphasis added).

The United States previously asserted a rule of express abandonment only for warships that sank during the Civil War period. Indeed, until recently there had been only one instance in which a government agency propounded a rule of express abandonment at all. See Letter of Secretary of State Rusk to American Embassy, Port–of–Prince (Apr. 29, 1965), Salvage, 9 Whiteman, supra, §15, at 221 (in regard to a U.S. vessel carrying lend–lease cargo prior to World War II, “where ownership to vessels or cargoes resided in US Government at time of sinking, the US retains title thereto subject to explicit transfer or abandonment”); Resort to War and Armed Force, 1980 Digest §1, at 1004 (“Title to [warships] sunk in the more distant past (such as during the 17th and 18th centuries) would, of course, still be determined by the more conventional interpretation of abandonment of that period.”). These distinctions have been acknowledged by U.S. courts. In Steinmetz v. United States, 973 F.2d 212, 222 (3d Cir. 1992), the court stated:

Steinmetz correctly points out that the policy of the United States concerning abandonment of its sunken vessels has not always been consistent. In recent times, a Deputy Legal Advisor of the Department of State has recognized the practice of treating warships from the 17th and 18th centuries as abandoned by implication of the long passage of time . . . .

27 SMCA, supra note 6, §1408(3).

28 Id. §1408(1).

29 Id. §1401.

30 U.S. Const. Art. IV, §3, cl. 2. While other nations may not have a constitutional basis for the disposition of their public craft, one might certainly expect that this is a subject of relevant legislation.

31 SMCA, supra note 6, §l406(c), (d).

32 “United States waters” are defined by the SMCA to include “United States internal waters, the United States territorial sea, and the United States contiguous zone.” Id. §1408(7). That means the provisions concerning foreign sunken military craft do not apply to objects beyond 24 nautical miles from the baselines from which the U.S. territorial sea is measured.

33 43 U.S.C. §2105(a), (c) (2000).

34 43 U.S.C. §2101(b).

35 H.R. Rep. No. 100–514(I), at 1, 2 (1988), as reprinted in 1988 U.S.C.C.A.N. 365, 366.

36 H.R. Rep. No. 100–514(11), at 5 (1988), as reprinted in 1988 U.S.C.CA.N. 370, 373–74.

37 H.R. Rep. No. 100–514(1), at 3–4, 1998 U.S.C.C.A.N. at 367–68.

38 43 U.S.C. §2101(b) (2000).

39 See note 36 supra and corresponding text.

40 See Sea Hunt v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 640–42 (4th Cir. 2000).

41 See, e.g., Marx v. Gov’t of Guam, 866 F.2d 294, 295, 300 (9th Cir. 1988) (1690 Spanish Manila galleon Pilar abandoned in territorial waters of U.S. territory of Guam); Platoro, Ltd. v. Unidentified Remains of a Vessel, 614 F.2d 1051, 1052, 1055 (5th Cir. 1980) (1554 Spanish galleon abandoned in Texas territorial waters); Lathrop v. Unidentified Vessel, 817 F.Supp. 953, 965 (M.D. Fla. 1993) (Spanish galleon that sank in the 1770s or 1780s abandoned in the waters of Cape Canaveral National Seashore, on Florida’s submerged lands but dedicated and managed as part of the National Park Service); Lopez Soba v. Fitzgerald, 1993 A.M.C. 120 (D.P.R. 1992) (unidentified Spanish shipwreck abandoned in Puerto Rican territorial waters); MDM Salvage v. Unidentified Vessel, 631 F.Supp. 308, 310 (S.D. Fla. 1986) (1733 Spanish galleon abandoned in Florida’s territorial waters); Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 525 F.Supp. 186,189–91 (S.D. Fla. 1981); Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F.Supp. 540 (S.D. Fla. 1982) (later proceeding) (Spanish 1715 plate fleet wrecks abandoned in Florida’s territorial waters).

42 This interpretation is consistent with the position of some publicists. See Rand, R. Pixa, In Defense of Perpetual Title to Sovereign Wrecks (2004)Google Scholar, available at <http://www.hnsa.org/conf2004/papers/pixa.htm>.

43 See Phelan v. Minges, 170 F.Supp. 826, 828 (D. Mass. 1959).

44 R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 963 (4th Cir. 1999).

45 See Hamburg–Am. Line v. United States, 168 F.2d 47, 56 (1st Cir. 1948) (“[S]alvage services are not compensable when forced upon a vessel after an offer of assistance has been expressly rejected, the crew remaining on board capable of meeting the peril.”); The Indian, 159 F. 20, 25 (5th Cir. 1908); Spreckels v. State of California, 45 F. 647, 649 (N.D. Cal. 1890).

46 See Merritt, & Chapman, Derrick & Wrecking Co. v. United States, 274 U.S. 611, 613 (1927) (“While salvage cannot be exacted for assistance forced upon a ship, her request for or express acceptance of the service is not always essential to the validity of the claim. It is enough if, under the circumstances, any prudent man would have accepted.”)Google Scholar (citation omitted); Tidewater Salvage, Inc. v. Weyerhaeuser Co., 633 F.2d 1304, 1307 (9th Cir. 1980). One might question whether the admiralty law of salvage imposes a “reasonable shipowner” standard on refusals of salvage Google Scholar. The origins of this rule lie in the English admiralty case of The Annapolis, (1861) 167 Eng. Rep. 150, 161 (P.C.), where it was said “that it would be dangerous to hold that if salvage service be actually rendered to a ship, she cannot be called upon to pay anything unless it can be shewn that she either requested or expressly accepted assistance.” The court agreed “that it is sufficient if the circumstances of the case are such that, if an offer of service had been made, any prudent man would have accepted it.” Id.

47 Tidewater Salvage, Inc. v. Weyerhaeuser Co., 633 F.2d 1304, 1307 (9th Cir. 1980) (footnote omitted).

48 See Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or Vessels, 47 F.Supp.2d 678 (E.D. Va. 1999).

49 See Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, No. 2:98cv281, 1999 U.S. Dist. lexis 21752, at *3, *16–17 (E.D. Va. June 25, 1999) (opinion and order).

50 Id. at *4 (citing New Harbor Protection Co. v. The Charles P. Chouteau, 5 F. 463, 464 (D. La. 1881)).

51 Id. at *5.

52 See id. at *13–l4.

53 221 F.3d at 648 n.2.

54 SMCA, supra note 6, §1402(a).

55 See id. § 1403. This scheme will be maintained by the military department that was the owner/operator of the sunken military craft. See id. §1408(2). As for foreign sunken military craft, “[a]t the request of any foreign State, the Secretary of the Navy, in consultation with the Secretary of State, may carry out this section (including regulations promulgated pursuant to this section) with respect to any foreign sunken military craft of that foreign State located in United States waters.” Id. §1403(d).

56 Id.§ 1402(b).

57 See id. § 1404(b), (c).

58 Id. §1404(d).

59 Id. §1404(e).

60 Id. §l405(a).

61 Id. §l405(b).

62 Id. §1406(1).

63 Id. §1402(c)(2).

64 Id. §1407.

65 Id. §1406(a), (b).

66 See text at note 13 supra (referencing Article 303(3) of the LOS Convention).

67 One way to ameliorate such concerns is to acknowledge that ordinary rules of statutory interpretation suggest that the general clause regarding high seas freedoms (which, while open–ended, does list the freedoms of particular concern) should not be read to contradict the specific provisions of the statute with respect to sunken craft. Moreover, the general clause might be understood to apply to sunken craft in ways consistent with the statutory determination of immunity. For example, if a wreck posed a danger to other activities at sea or to the protection and preservation of the marine environment, there might be pertinent flag state duties under the LOS Convention (and customary law) of due regard, see LOS Convention, supra note 7, Arts. 58(3), 87(2), or with respect to the environment, see id., Art. 236. I am grateful to my colleague Professor Bernard Oxman for suggesting this point.

68 SMCA, supra note 6, §1406(e) (“Nothing in this title is intended to alter the international law of capture or prize with respect to sunken military craft.”).

69 Steinmetz v. United States, 973 F.2d 212, 217–18 (3d Cir. 1992).

70 See SMCA, supra note 6, §§1401(1) (“express divestiture” of U.S. title), 1408(1) (“debris field” in definition of “associated contents” of sunken craft). This problem of incomplete definition was also seen in the Abandoned Shipwreck Act, 43 U.S.C. §2102 (2000), which neglected to define the term “abandoned.”

71 See SMCA, supra note 6, §1405 (b)(2) (transferring the government’s entire cost of archaeological investigation of sites to violators, as an element of liability for damages).

72 See H.R. Rep. No. 108–767, at 817 (2004) (Conf. Rep.).

73 SMCA, supra note 6, § 1402(a).

74 Id. §1408(3).

75 Id. §1404(a).

76 See id. §l405(a).

77 Id. §§1402(a), 1404(a), 1405(a).

78 Section 1402(a) might thus be modified to read: “No person shall knowingly and willfully engage in, or attempt to engage in, any activity directed at a site or location known (or reasonably believed) to be that of a sunken military craft, and such activity deliberately disturbs, removes, or injures any sunken military craft, except . . . .”

Section 1404(a) might be modified to read: “Any person who knowingly and willfully violates this title . . .”

Section 1405(a) might be modified to read

Any person who knowingly and willfully engages in any activity in violation of section 1402, or any regulation or permit issued under this title, directed at a site or location known (or reasonably believed) to be that of a sunken military craft, and such activity deliberately disturbs, removes, or injures any United States sunken military craft shall pay the United States . . . .

79 SMCA, supra note 6, §§l402(c)(2)(C), 1406(b).

80 Protection of Military Remains Act, 1986, c. 35, §2(1)(b), (c) (Eng.); see also Protection of Wrecks Act, 1973, c. 33, §1(3) (Eng.) (penalties arise only where actor transgresses preestablished restricted areas).

81 See SMCA, supra note 6, §l406(a).

82 Section 1406(a)(1) might thus be revised to read:

Except to the extent that an activity is undertaken as a subterfuge for activities prohibited by this title, nothing in this title is intended to affect—

(1) any activity that is not directed at a sunken military craft, including salvage or exploration operations directed toward other types of sunken craft or forms of underwater cultural heritage.

83 Protection of Wrecks Act, supra note 80, §3(3)(a), (c).

84 SMCA, supra note 6, §1408(3)(A).

85 For issues of application of sovereign immunity doctrines to state and local entities, see In re New York, 256 U.S. 490 (1921); Workman v. Mayor, Aldermen & Commonalty of New York, 179 U.S. 552 (1900). Otherwise, this issue is beyond the scope of this Note.

86 See LOS Convention, supra note 7, Art. 96 (“Ships owned or operated by a State and used only on government non–commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State.”) (emphasis added), Art. 236 (“The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non–commercial service.”) (emphasis added) (pending before the Senate for advice and consent); United States: President’s Transmittal of the United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI to the U.S. Senate with Commentary (Oct. 7, 1994), reprinted in 34 ILM 1393, 1413 (1995); see also Madrid Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, Annex IV, Art. 11, para. 1, 30 ILM 1455, 1485 (1991) (“This Annex shall not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non–commercial service.”) (emphasis added).

87 SMCA, supra note 6, §§1402(c)(2)(C), 1406(b).

88 The United States and France have successfully resolved such issues. See La Belle Practice Note, supra note 5. The United Kingdom and Spain, however, are embroiled (as of this writing) in a dispute concerning the status of a wreck site believed to be that of the HMS Sussex, which sank off the Andalusian coast of Spain. William, J. Broad, A Sunken Warship Sets off a New Mediterranean Battle, N.Y. Times, Jan. 28, 2006, at A3Google Scholar.

89 See note 32 supra (defining U.S. waters).

90 Such agreements are contemplated under the SMCA, supra note 6, §1407. For the U.S.–France Agreement, see La Belle Practice Note, supra notes 5, 88. See also Pixa, supra note 42, at 5–6.

91 North Sea Continental Shelf (FRG v. Den.; FRG v. Neth.), 1969 ICJ REP. 3 (Feb. 20) (rejecting as customary international law the strict equidistance rule of continental shelf delimitation). The U.S. concept of coastal state economic rights over the continental shelf, announced in 1945, was so quickly accepted as customary international law binding on all states that it has been cited as an example of “instant customary law.” Restatement (THIRD) of the Foreign Relations Law of the United States §102 reporters’ note 2 (1987)Google Scholar.

92 The Soviet Union vigorously objected in 1974 to the U.S. salvage of a Soviet nuclear submarine, in what came to be known as the Glomar Explorer incident. See Seymour, Hersh, C.I.A. Salvage Ship Brought up Part of Soviet Sub Lost in 1968, Failed to Raise Atom Missiles, N.Y. Times, Mar. 19, 1975, at 1 Google Scholar; Thomas, O’Toole, A–Warheads Believed Recovered, Wash. Post, Mar. 21, 1975, at A1Google Scholar; Jack, Nelson, Administration Won’t Talk About Sub Raised by CIA, L.A. Times, Mar. 20, 1975, at A1Google Scholar; see also Michael, G. Collins, The Salvage of Sunken Military Vessels, 10 Int’l Law. 681 (1976)Google Scholar; Alfred, P. Rubin, Sunken Soviet Submarines and Central Intelligence: Laws of Property and the Agency, 69 AJIL 855 (1975)Google Scholar; Frederic, A. Eustis III, Note, The Glomar Explorer Incident: Implications for the Law of Salvage, 16 Va.J. Int’l L. 177 (1975)Google Scholar.

93 See supra notes 40–41 and corresponding text (discussing claims of Spain regarding its sunken warships situated in the territorial seas of other nations).

94 See supra note 3.

95 See Church v. Hubbart, 6 U.S. (2 Cranch) 187, 235 (1804) (Marshall, C.J.) (“If [regulations over ocean uses] are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to.”).