Lloyd's Maritime and Commercial Law Quarterly
SALVAGE OF ANCIENT TREASURE SHIPS
Subaqueous Exploration & Archaeology Ltd., and Atlantic Ship Historical Society Inc. v. The Unidentified, Wrecked and Abandoned Vessel, etc., et al
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Three Spanish treasure ships and an English privateer were believed to be “under an undetermined amount of sand” in the Atlantic Ocean within three miles of Ocean City, Maryland. Recovery of the vessels and their cargo was a primary objective of Subaqueous Exploration & Archaeology Ltd. (“Subaqueous”), a Maryland corporation formed in July 1980 “to engage in the exploration, discovery, and recovery of artifacts, treasure, and other items of value”2. The application process with the State of Maryland for authorization to excavate the shipwreck sites was at an impasse in December 1980. A combination of the complexities of an apparent overlapping jurisdiction among the Maryland Geological Survey, the Board of Public Works and the Maryland Historical Trust and the possibility of amendment to the Natural Resources Article of the Maryland Code3 served to prevent easy approval or denial of a Subaqueous proposal to excavate the shipwrecks4.
In an attempt to preserve its claim and the shipwrecks, Subaqueous, joined by Atlantic Ship Historical Society Inc. (“Atlantic”), pursued a judicial remedy5. On 13 January 1981 three separate in rem proceedings were filed in the United States District Court for the District of Maryland6. An adjudication of title to the wrecks and
1 577 F. Supp. 597, 1984 A.M.C. 913 (1983) (citations hereafter are to F. Supp.) See fn. 2 of the opinion at p. 600 for coordinates alleged by the complainants to be areas within which the shipwrecks were located. For discussion of salvage from ancient shipwrecks see Owen, 16 J.M.L.C. 139 (1985).
2 Subaqueous Exploration & Archaeology Inc. Articles of Amendment and Restatement, 28 July 1980, at 1. Shortly after Subaqueous was formed, advertisements were placed in The Wall Street Journal in order to attract investors. By December 1980, 35 individuals were reported to have invested $200,000, ranging from $2,500 to $25,000 per person; see Corddry, “Search for treasure off Ocean City is shipwrecked on rocky finances”, Baltimore Sun, 25 April 1983, s. A at 1.
3 Section 2–101 et seq.
4 The salvage operations proposed by Subaqueous necessitated application for a permit from the Maryland Geological Survey, s. 2–305 Md. Nat. Res. Code Ann., as well as a wetlands license from the Board of Public Works, s. 9–202 Md. Nat. Res. Code Ann. The method of excavation of the shipwreck sites and removal of artifacts was interpreted as “dredging” State wetlands. In addition to the permit and license criteria, the Maryland Historical Trust, a section of the State’s Department of Economic and Community Development, sought control over the salvage operations. At the time of the Complaints in Subaqueous, the State’s General Assembly was considering amendment to the Natural Resources Article. Support for amendment was later found to be insufficient; the Article was not amended. Given the uncertainties and the likelihood of an extended process for application, in addition to legislative consideration of relevant statutes, the Board of Directors of Subaqueous decided to obtain counsel and initiate action in the U.S. District Court in order to have Subaqueous declared salvor in possession of the shipwrecks and their cargo. Litigation by Subaqueous might have been avoided but for the confusion created by the overlap of jurisdiction between State agencies and the possibility of legislative change to the Natural Resources Article. See “Salvor set to retrieve rich 1780 wreck off Bronx”, Baltimore Sun, 28 March 1985 (Maritime Underwater Surveys Inc. was granted the necessary permit to locate the sunken British frigate Hussar and her “fabulous treasure”); cf. In the Matter of William Andrews, 266 F. Supp. 162, 165 (D. Fla 1967) where “the business of searching for and recovery from the bottom of the sea, treasure and artifacts lost centuries ago is not the business of saving property shipwrecked and in distress, and is … not the business … requiring a license”.
5 Atlantic Ship Historical Society Inc. was organized as a non-profit corporation to promote educational, scientific, and cultural endeavors. Incorporated in 1977 by Donald F. Stewart, a Director and Project Manager of Subaqueous, Atlantic became a contract partner with Subaqueous in the salvage operation.
6 Pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims, 28 U.S.C.A. Rules (1970), Rules A-E, an affidavit was prepared by counsel for Subaqueous. The claim to the defendant vessels and their cargo was based upon research by Donald F. Stewart in England during 1947 and 1974 and in Spain during 1948. The three civil cases concerning four vessels were not consolidated, but the court’s opinion in Subaqueous resolved all the outstanding motions in the case; see fn. 1 of the opinion at p. 600. In Civil Case No. R81–51, the defendant vessel was the Santa Rosalea, believed to contain a treasure more valuable than that of the Spanish galleon, Neustra Señora de Atocha of Treasure Salvors fame (infra, fn. 10) (recent discovery of the Atocha’s “mother lode” has been estimated to exceed $400 million; see “Treasure ship search yields 7 tons of silver”, Tampa Tribune, 22 July 1985, s. B at 1 and “Treasure Hunt: Wrecks to Riches”, Newsweek, 5 August 1985, at 18–23). In Civil Case No. R81–52, the defendant vessel was the Royal George, an English privateer, believed to contain Spanish treasure. In Civil Case No. R81–53, the defendant vessels were the Santa Clara and the San Lorenzo del Escorial, alleged to be the ship from which the wild ponies of Assateague Island, Maryland originated.
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