Maritime law: new technology heralds the future of shipwreck protection
Joanne HarrisFriday 17 November 2023
Half a century ago, the UK’s lawmakers passed a piece of legislation aimed at one thing – protecting shipwrecks of historical interest from being looted. The Protection of Wrecks Act (PWA) 1973, originally introduced to the UK Parliament as a private member’s bill, authorises ministers to designate the site of a vessel of historical, archaeological or artistic importance lying wrecked in or on the seabed as a restricted area, and so prevent it from unauthorised interference. Only licensed divers can explore these wrecks, and the condition of each site is monitored.
Currently, 57 wrecks off the coast of England – plus more in waters around Wales and Scotland – are designated under the PWA. But, with shipwreck looting and damage still ongoing, the executive non-departmental public body Historic England recently announced a new project to forensically mark artefacts at the protected sites. The aim is to make them traceable by authorities if they are brought to the surface and sold, thus deterring looters.
It’s a unique move that’s attracted much interest in marine archaeology circles. Although only a handful of the thousands of wrecks around the UK coast will be protected in this way, being able to trace artefacts could solve one of the key challenges in the world of shipwreck and salvage law – the issue of enforcement.
‘It’s perfectly legal to recover material from wrecks because that’s the law of salvage. It’s based on public policy that wrecks are outside the mainstream of commerce,’ explains Michael Williams, a Visiting Research Fellow at the University of Plymouth’s Marine Conservation and Policy Research Centre. Under the PWA, a diver bringing up artefacts from a wreck site in UK territorial waters must report their findings to the Receiver of Wreck (ROW), who ensures the interests of the salvor, as well as any relevant owners, archaeologists and museums are taken into account. Salvors of wrecks not covered by the PWA should also report findings to the ROW under the Merchant Shipping Act 1995. ‘If you recover material from outside the territorial waters and bring it into the UK you’re entitled to it, and the Crown doesn’t get it,’ adds Williams.
The stakes are pretty high for people who try to dabble in this kind of work, it does take a level of sophistication
Thomas Belknap
Secretary, IBA Maritime and Transport Law Committee
A key case that influenced the decision to introduce forensic marking was the prosecution in 2015 of Vincent Woolsgrove, who claimed he had found three 17th century cannon outside UK waters. The ROW investigated, found they couldn’t challenge the claim, and the cannon were sold to a US collector. Subsequent investigations by the relevant authorities established the cannon had been lifted from the wreck of HMS London in the Thames Estuary.
This was a rare successful prosecution. Other jurisdictions have similar challenges in enforcing rights under salvage laws. In the US, the rights to artefacts from wrecks in US waters – or artefacts brought into the US – are effectively ‘finders’ keepers’, says Thomas Belknap, Secretary of the IBA Maritime and Transport Law Committee and Maritime Practice Group co-chair at Blank Rome, in New York.
If you bring up even a small item from a wreck, the courts can grant you exclusive salvage rights over the vessel and its contents, giving you time to explore it thoroughly for the most valuable items. ‘There is some expectation that you’re going to take something that’s not immediately valuable’, Belknap says. ‘If you’re looking at a shipwreck, and you’re looking at taking the ship’s bell or a shard of wood off the stern rail, take the shard of wood, and take efforts to preserve it. What the court literally requires is the most minimal representation of the artefact itself.’
Belknap explains the law has developed particularly around rights associated with the wreck of the Titanic. In 2017, the US Congress passed a law to prevent recovery operations on the Titanic without prior approval of the Secretary of Commerce. ‘They wanted to have a way of preventing treasure seekers from just going at it and picking at it until it disappears,’ Belknap explains.
But the US law doesn’t apply if someone can prove ownership over the wreck and its contents. In 2007, Odyssey Marine Exploration discovered around $500m worth of gold and silver coins in the wreck of the Spanish galleon Nuestra Señora de las Mercedes, brought the treasure to Florida and applied for salvage rights. But the Spanish government sued Odyssey, claiming ownership of the vessel and its cargo. Odyssey eventually had to give the coins back to Spain.
‘The stakes are pretty high for people who try to dabble in this kind of work, it does take a level of sophistication,’ Belknap says. As a result, salvors in the US are often, although not exclusively, businesses, and there is, as Belknap says, ‘a ton’ of litigation around obtaining and adjudicating salvage rights.
In the UK, the environment is slightly different. Under the PWA, protected sites are regularly monitored, often by recreational divers who have completed a course with the Nautical Archaeology Society. This is still unusual when it comes to underwater cultural heritage legislation elsewhere in the world, but allows more people to get involved in exploring and protecting shipwrecks.
Williams says that when it was brought in, the PWA was a pioneering piece of legislation, but as a private member’s bill – passed quickly, without the same requirements for scrutiny as government bills – it was intended to be temporary. Those involved in marine protection and archaeology are keen for it to be revised. ‘There are real problems with it,’ says Williams, highlighting a number of ‘major loopholes’. These include how to prove damage to a wreck and how to prove someone actually dived on a protected site without the necessary licence. Another issue is that the PWA only applies to vessels and not other underwater archaeology sites, such as crashed planes.
Nevertheless, for 50 years the PWA has played its part in ensuring that the most significant of the wrecks around the UK coast are protected and, in doing so, has set the stage for other jurisdictions to look after their underwater cultural heritage too.
Image credit: Mary Durden/AdobeStock.com