Those Are Pearls That Were His Eyes
Full fathom five thy father lies;
Of his bones are coral made;
Those are pearls that were his eyes:
Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and strange.
Sea-nymphs hourly ring his knell
Ding-dong
Hark! now I hear them – Ding-dong, bell.
–William Shakespeare, The Tempest
During the War of 1812, Philadelphia’s Academy of Fine Arts petitioned a Nova Scotia admiralty court to release works of art bound for it from Italy aboard an American merchant ship captured by the British and brought to Halifax. The court granted the petition distinguishing, for the first time in a published judicial opinion, cultural property from other chattel, stating that works of art are “entitled to favour and protection.”1 By creating an exception for paintings and prints, the court gave cultural property a special legal status, the contours and extent of which remain elastic. Two centuries after the Nova Scotia court christened the field of cultural property law, Valentina Vadi has written an insightful article seeking to determine whether a norm of customary international law is developing to distinguish and provide special legal treatment for a particular kind of cultural property: sunken warships.
Sunken ships are an especially complicated form of cultural property. A ship’s wreckage and cargo are often historically and aesthetically important and immensely valuable monetarily; their archaeological context preserves unique and irreplaceable information; their human remains implicate practices and traditions relating to treatment of the dead; and some pose environmental hazards to flora and fauna (both of which are deemed cultural property under a 1970 UNESCO cultural property convention). Because new technologies are facilitating the discovery, identification, and recovery of shipwrecks, it is reasonably foreseeable that disputes over them will continue. Thus, the growing scholarship on shipwrecks is timely, and Valentina Vadi’s inquiry, in particular, responds to an important question.
Claims involving sunken ships fall into an especially complex web of legal issues, and this web is nowhere more complex than in cases involving sunken military vessels. One would be hard pressed to identify other disputes that present an equivalently complicated set of laws. These cases bring into play ancient legal doctrines of salvage and finds; international conventions, treaties, and agreements; federal and state law; and customary international law. Complicating matters further, the range of stakeholders in these cases stretches far beyond the apparent ones – the flag state, the country where the wreck is located, and the modern-day discoverer – to include archaeologists, historians, collectors, scientists, amateur divers, environmentalists, descendants of the dead, journalists, and insurance underwriters, for starters.
The legal and ethical issues presented in shipwreck cases depend, in part, on the type of ship involved. Wrecks may be of passenger vessels (for example, the Titanic –sunk 1912, rediscovered 1985), merchant ships (the Kyrenia shipwreck – sunk 4th century BCE, rediscovered 1967), or, the focus of Vadi’s article, military ships (the Nuestra Señora de Atocha – sunk 1622, rediscovered 1985). That said, however, even classifying a wreck as a sunken military vessel takes a court into murky waters with some arguing that a warship loses that characteristic when it is no longer under military command and no longer functioning as a military vessel. Others argue that a military vessel retains its distinct character even on the ocean floor. Other fundamental issues are also unsettled. For example, what constitutes the wreck: the ship alone or the ship and its cargo? When human remains are discovered does the site require special treatment as a burial ground? Vadi addresses these concerns in describing two fundamental questions raised in recent cases.
The first is the determination of abandonment. Common law principles of salvage apply only to ships that have not been abandoned: the ship’s owner has the prerogative to refuse salvage. An abandoned ship, however, is subject to the law of finds, not to the law of salvage. By promising a financial award to the salvor, salvage law creates an incentive to risk life and property to save life and property. Title to salvaged property does not transfer to the salvor, however, until a court orders a salvage award. In the law of finds, as any six-year old knows, finders-keepers: those who recover an abandoned ship and cargo obtain good title to the recovered property. Thus, whether there is, or should be, a presumption of abandonment, favoring salvors, or a presumption of non-abandonment favoring the ship’s flag state remains unsettled. Second, when a sunken warship is discovered in the territorial waters of another nation tension develops with flag nations typically asserting continuing dominion and control of the wreck, a position in conflict with coastal nation sovereignty.
In determining whether there is an emerging norm of customary international law applicable to sunken warships Vadi observes that existing multilateral treaties provide only modest guidance. The extent to which provisions for military ships in the United Nations Convention on the Law of the Seas extends to sunken warships is not clear; moreover UNCLOS addresses cultural heritage issues only generally. And while UNESCO’s 2001 Convention on the Protection of the Underwater Cultural Heritage does address sunken military vessels, very few major maritime countries are states parties. Thus, Vadi turns primarily to case law and scholarship through the lens of four “paradigms:” sovereign immunity, property rights, cultural heritage, and humanitarian concerns. Vadi details the law and significance of each of these issues and, perhaps more importantly, describes how they overlap, reinforce one another, and conflict. While noting that an active debate remains as to whether a customary international norm exists granting sunken warships special protection, she concludes that “opinio juris and state practice are gradually coalescing” in that direction.
For those who study cultural property law, Vadi’s article provides a good reminder of the complexity of the issues presented in cases involving (often long-forgotten) sunken military vessels. For those in other fields, Vadi opens a door to understanding the range of factual, legal, and procedural matters these wrecks present to litigants and courts. For all readers, especially in her discussion of the cultural heritage paradigm, Vadi indicates why in cultural heritage disputes ethical considerations are often as pressing as legal ones.
