October 2015 Bar Bulletin
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October 2015 Bar Bulletin

Treasure Hunting in the Graveyard of the Pacific

By Joe Terrenzio

 

The unpredictable weather and sea conditions on the Pacific coast of Washington made it one of the most dangerous areas for trade and shipping for hundreds of years. Though the Washington coast may not have sensational lost Spanish treasure fleets waiting to be found, as occasionally crop up off the Florida coast, many wrecks lie hidden under the waves.

If a wreck laden with gold, perhaps from the California gold rush, is discovered on the Washington coast, the situation raises interesting questions under the complex regimes of maritime law and salvage. Depending on where a wreck is located, state, federal or international law may apply.

The concept of maritime salvage is ancient. As the Supreme Court has long acknowledged, "Salvage is well defined as the compensation allowed to persons by whose assistance a ship or vessel, or the cargo of the same, or the lives of the persons belonging to the ship or vessel, are saved from danger or loss in cases of shipwreck, derelict capture, or other marine misadventures."1

Salvage has a clear policy basis and strong tradition among mariners, and applies worldwide through the International Convention on Salvage.2 In the United States, marine salvage falls under admiralty law and applies to a wreck that has not been abandoned.3 Salvage law exists as a foil to the common law of finds, which applies when a wreck is abandoned.4 Under the law of finds, whomever finds the wreck first becomes the owner.5

Broad federal regulation exists through the Abandoned Shipwreck Act (ASA), which applies to both the sunken vessel and its contents.6 The ASA establishes that any abandoned shipwreck embedded in a state's submerged lands is property of the United States, which then transfers ownership to the state and the wreck becomes subject to that state's jurisdiction.7

Wrecks on public lands belong to the federal government and wrecks on tribal land belong to the tribe.8 The ASA expressly states that the laws of salvage and finds do not apply to covered wrecks.9 For wrecks on state lands governed by the ASA, the state determines what rights, if any, a finder or salvor has.

In Washington, the Department of Archaeology and Historic Preservation can issue permits for the excavation and removal of a registered shipwreck.10 There are many requirements to receive a permit, including:

  • demonstrable competence in archaeological methods and theory;
  • in collecting, handling, analyzing, evaluating and reporting archaeological data; and
  • giving the Department access to all artifacts and data recovered for purposes of scholarly research, and photographic documentation for a period the Department specifies.11

Salvors operating under such a permit must give the State first choice of which objects it may wish to retain for display purposes.12 The State may retain objects with a value of up to 10 percent of the total appraised value of the recovered objects.13 If the State chooses not to retain recovered objects, the State is entitled to receive its share in cash or a combination of recovered objects and cash not to exceed 10 percent of the appraised value of the objects recovered.14

The salvor will receive fair compensation, defined as not less than 90 percent of the appraised value of the objects recovered following successful completion of the contract.15 The salvor may retain objects with a value of up to 90 percent of the appraised value of the total objects recovered, or cash, or a combination of objects and cash.16

Another consideration is the preservation of wrecks in situ. Many wrecks are left where they lay as parks, monuments and educational opportunities. An example of the growing interest in preserving wrecks is the UNESCO Convention on the Protection of Underwater Cultural Heritage, which does not regulate ownership rights over underwater cultural property, but instructs on how to best preserve property for the benefit of humanity.17 Under the ASA, states are encouraged to create parks around wrecks to promote access and ensure environmental protection.18

Salvors and treasure hunters are well advised to act with care when they discover a wreck. The legal waters are deep and the currents strong.

Joe Terrenzio is a solo practitioner who has recently returned home to Seattle. He is licensed in Washington, Oregon and Illinois. Terrenzio's experience focuses on international and environmental law and he currently provides litigation, consulting, research and writing services.


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