The Law & Wrecks

PART ICanada

Federal

Canada Shipping Act (2001)

Parks Canada

“Standards for the Conservation of Archaeological Sites”

Canada Shipping Act (2001)Definition of a “shipwreck”

“Jetsam, flotsam, lagan and derelict and any other thing that was part of, or was on a vessel wrecked, stranded or in distress; and Aircraft wrecked in waters and

anything that was part of or was on aircraft wrecked, stranded or in distress in waters.”

• Under the new Act any geographical area within Canada can be exempt.

• Recognizes areas within Canada’s national parks as being under the jurisdiction of Parks Canada.

• Still allows for the possible designation of a “Receiver of Wreck.”

• Anyone who commits an offence under Part 7 of the Act is liable to be fined up to $100,000, can receive a jail term of up to one year or both.

Parks CanadaThe new standards for the conservation of

historic places in Canada applies to sites on both land & underwater. It replaces the former

“Archaeological Legislation on Lands in Canada.”

There are 15 general standards for all projects within national parks. Most apply to the restoration of historic buildings and places.

The two general standards which have direct implications for underwater sites (found within

National Parks or on Crown land) are;

General Standard 3Conserve “heritage value” by adopting an

approach calling for “minimal intervention.”

General Standard 6Protect and, if necessary, stabilize a “historic

place” until any subsequent “intervention” is undertaken. Protect and preserve

archaeological resources in place. Where there is potential for disturbance of archaeological

resources, take mitigation measures to limit damage and loss of information.

Lake Minnewanka, Banff National Park

The new standards were introduced in 2003 along with financial incentives for the private sector to

preserve historic properties.

In addition, Canada’s new “Historic Places Initiative” includes the Canadian Register of

Historic Places, which lists formally recognized historic places across the country.

The new standards and guidelines is described as “Canada’s first comprehensive, nation-wide benchmark of

conservative principles and practices.”

PART II (a)The Provinces

All provinces and territories within Canada have legislation pertaining to the management of archaeological resources on lands found within their borders. However,

legislation aimed at protecting underwater sites is not uniform across the country and some jurisdictions, such as

the Province of Saskatchewan and the Yukon Territory, have none at all. Most jurisdictions are facing serious

challenges in trying to identify and manage their marine heritage resources.

Lets look at those provinces which do have legislation pertaining to shipwrecks:

British ColumbiaHeritage Conservation Act

Amended several times since it was introduced in 1977.

Administered by the Department of Small Business, Tourism and Culture:

Archaeology Branch

All shipwrecks over two years old are the property of the Province.

The Archaeology Branch has a unique relationship with the Underwater Archaeology Society of B.C. The UASBC

reviews all foreshore applications for the potential impact on submerged cultural resources within the province.

Permits are required for archaeological research involving direct contact with sites. Applicants need not have a degree, but must have

demonstrated ability in underwater archaeology.

The Bonnington, Kootenay Lake, B.C.

Newfoundland & LabradorHistoric Resources Act

Introduced in 1985.

Administered by the Department of Tourism, Culture and Recreation: Cultural Affairs Branch: Historic Resources Division

All shipwrecks and associated artifacts are owned by the Province.

A permit is required to “conduct archaeological investigations for the purposes of discovering archaeological objects.”

No qualifications are specified as to who can apply, and be approved, for a permit.

Wrecks of Bell Island, Nfld.

Prince Edward IslandArchaeological Sites Protection Act

First introduced in 1987, but has been amended several times.

Administered by the PEI Museum & Heritage Foundation. PEI’s Dept. of Education designates an archaeological site.

All shipwrecks and associated artifacts are the property of the Province.

A permit is required to conduct archaeological research. Permits are reviewed by a volunteer board, which makes recommendations to the Minister of Education. No qualifications are specified as to

who can apply, and be approved, for a permit.

New BrunswickHistoric Sites Protection Act

First introduced in 1954, but has been amended several times.

Administered by the Department of Economic Development, Tourism and Culture: Heritage Branch

All shipwrecks and associated artifacts are the property of the Province.

A field license is required per separate marine archaeological project. A license holder must hold an advanced degree in

Archaeology (or equivalent) as well as have four months of field experience – of which at least two months must have been in a

supervisory position.

QuebecCultural Property Act

First introduced in 1973, but has been amended several times.

Administered by the Minister of Culture and Communications

No specific protection is afforded explicitly to shipwrecks, but the Minister may recognize any cultural property whose conservation is in the public interest. Only one shipwreck, the Empress of Ireland,

has so far been recognized.

An archaeological research permit is required per project. The permit holder must have a Master’s degree in Archaeology and a

minimum of 20 weeks of field experience.

The Empress of Ireland

OntarioOntario Heritage Act

Revised in 1990.

Administered by the Ministry of Citizenship, Culture, & Recreation: Archaeology & Heritage Planning

The Act doesn’t specifically identify shipwrecks as being protected, but three have been directly by the Minister, the Hamilton and the Scourge in Lake Ontario

and the Edmund Fitzgerald in Lake Superior.

Despite having no explicit shipwreck law, an archaeological underwater license is required by the Province to conduct even a

general survey of a site. Applicants must be deemed competent to conduct research.

The Hamilton

Nova ScotiaSpecial Places Protection Act

Introduced in 1980, replacing the Historical Objects Protection Act.

Administered by the Dept. of Tourism, Culture and Heritage: Special Places Program, Heritage Division

Potential conflicts exist with Nova Scotia’s Treasure Trove Act, which was introduced in 1954 in relation to Oak Island. Treasure Trove License holders are allowed to keep 90% of any “treasure” they find. Any “non-financially significant” artifacts remains the

property of the Province.

A heritage research permit is required for exploration (Category A) and excavation (Category B). The later can only be applied for by an

applicant who has at least a B.A. in Archaeology, and experience, and is deemed competent to conduct the proposed research.

Auguste wreck site

PART II (b)State of Florida

The Historical Resources Act

The Bureau of Archaeological Research manages Florida’s historical shipwreck sites. It contracts exploration

and excavations to private companies or individuals.

But, unlike the Province of Nova Scotia, the State of Florida is much more involved

in supervising contractors and their work.

Funding is also available to contractors for projects through Florida’s Historic Preservation Trust Fund.

In 1985 Key West salvor Mel Fisher found the “mother lode” of financially significant artifacts, treasure from the 1622 wreck of the Nuestra Senora de Atocha. Forty-seven tons of

gold and silver bars and coins, jewelry, emeralds and other artifacts were recovered – estimated between $200 and $400 million. Fisher had to fight to keep the majority of his haul though, fighting the State of Florida for ownership all the way to the US Supreme

Court.

In 1992 the National Oceanographic & Atmospheric Administration (NOAA) declared the Florida Keys a protected

sanctuary. This froze almost all salvaging efforts in the area.

However, Fisher’s Supreme Court victory grandfathered his right to

recover from the Atocha site.

Today, MEL FISHER’S TREASURES is a private company made up of

investors who each pay $10,000 per year to spend a week working the wreck site. Each investor gets to keep the first piece of silver or gold they find (within limits) and shares in the division of all the treasure found that year.

The State of Florida receives 20% of everything that is recovered.

The Mel Fisher Treasure Museum is, today, a not-for-profit

organization.

The Gulf of MexicoOil exploration and development

& marine archaeology

The U.S. Department of the Interior, Minerals Management Service (MMS), is responsible for ensuring that all activities it permits takes into consideration the potential effects these may have on archaeological resources.

MMS manages natural resources, such as oil and gas, through a combination of efforts that includes; requiring oil companies to conduct remote sensing surveys and archaeological assessments in lease blocks.

MMS also funds surveys to identify known and expected locations of marine archaeological sites.

To date, 35 historic shipwrecks have been identified in the Gulf - in water depths greater than 1,000 feet. Of these, 18 were located mostly

through the results of Right-of-Way hazards pipeline surveys.

The German u-boat U-166 was first detected in 1986, and subsequently identified in 2003, by a survey company working for British Petroleum

(BP) and Shell International to map the Mississippi Canyon Area.

A grant provided by the U.S. Government allowed for the systematic exploration of the wreck using advanced undersea technology. The project was coordinated by the National Oceanic and Atmospheric

Association’s Office of Ocean Exploration.

PART IIICurrent International Law

There are several international regulatory bodies which govern shipwrecks. These include;

the Committee Maritime International, the United

Nations Division of Ocean Affairs & the International

Maritime Organization.

The United Nations “Law of the Sea Convention”

applies to areas beyond the territorial waters or legal

jurisdiction of any country.

The “Convention on the Protection of the Underwater Heritage,”

was put forward in 2001 by the United Nations’s Education,

Scientific and Cultural Organization (UNESCO).

But, it only applies to the 20 countries which have ratified it. Canada is not one of these!

Nor is the United States, The United Kingdom, France, Germany, Japan, China, Russia and most

countries in the developed world.

MalaysiaMalaysia decided not to sign the UNESCO 2001 Convention,

stating that its National Heritage Act (2005) was introduced specifically to safeguard that country’s underwater cultural heritage.

Malaysia recognizes that marine archaeology is expensive, especially pertaining to deepwater projects. And, that a country with a developing economy, like Malaysia, cannot

afford the expense. As a result, it contracts out excavations to private companies. However, the country does have its own small team of marine archaeologists who oversee

contractors and conduct some projects on their own.

Malaysia says it has a good handle on treasure hunters and has taken steps to curb looting using its marine and naval authorities.

The Strait of Malacca remains one of the most important sea routes in the world. It gained prominence in the 15th Century when the Melaka Sultanate became the

center of a thriving international spice trade that extended from Europe to China.

Portugal was the first European nation to take control of Melaka in 1511 AD. The Dutch attacked and defeated the Portuguese in 1641. They ruled for 154 years. The last colonial power to rule Malaysia was Great Britain,

which had already established colonies in Penang and Singapore.

Dominican RepublicThe island of Hispaniola (today’s Haiti and the Dominican Republic) is one of the most important sites for Colonial archaeology.

It’s where the Spanish first established themselves in the New World. In fact, Columbus lost his flagship, the Santa Maria,

on his first voyage of discovery in 1492.

A year later he returned to Hispaniola and established the colony of La Isabela. Between 1494 and 1496 at

least three of Columbus’s ships were lost in a hurricane.

In 1496 the Spanish colonial seat was established in Santo Domingo, today’s capital. They would

rule the eastern side of Hispaniola until 1697.

Some of the oldest buildings in the Americas are at Santo Domingo; including the oldest cathedral,

Catedral Santa Maria la Menor (left) and the oldest hospital, Hospital de San Nicola de Bari.

The Dominican Republic has not ratified the UNESCO 2001 Convention. Like Malaysia, it works with private

contractors to manage its underwater cultural heritage.

The Dominican Republic was the first country in the world to establish an underwater shipwreck museum,

the 1724 Guadalupe Underwater Archaeological Preserve.

IndiaIndia has many submerged cultural resources including several, now underwater, “lost cities.” It has not ratified the UNESCO 2001 Convention. But, unlike the Dominican Republic and Malaysia it does not contract out its archaeology to private companies. Instead, it works with a number of foreign academic institutions; such as the Western

Australia Maritime Museum at Fremantle, & the University of Southampton in England.

To date, only a limited amount of field work has been done and few sites have been studied thoroughly. As a result, many argue that marine archaeology in

India is largely under-developed and under-appreciated both at home and abroad.

Sovereign ImmunityMilitary shipwrecks less than 100

years old remain the property of their mother country under the terms of

“Sovereign Immunity” (Law of the Sea Convention).

In Canada this applies to the shipwrecks of foreign warships, such

as several German u-boats off this country’s east coast.

However, some nations, such as the United States, Spain and Great Britain, argue that Sovereign

Immunity applies to warship wrecks older than 100 years.

Black Swan Big Trouble!Tampa-based ODYSSEY MARINE EXPLORATION is in legal hotwater with the governments of Spain & Peru over a shipwreck, code named “Black Swan” it recovered in 2007.

The company alleged that the shipwreck was in international waters and was beyond the legal jurisdiction of any country. Initially, it refused to divulge the location of the find and any details about the shipwreck it came from.

Odyssey Marine Exploration first made news when it recovered a large cache of gold coins from the SS Republic off the US east coast in 2003.

However, the publicly-traded company has never made a profit and allegations of stock fraud from its pre-Republic days still dog the company’s founders & directors.

During the summer of 2007 Odyssey Marine’s search vessel, Ocean Alert, was seized by Spanish authorities off Gibraltar – who searched it for clues as to the origin of the estimated $500 million in silver coins. Spain then filed a claim against the company in US Federal Court.

Even though the wreck was found beyond the country’s 200-mile Exclusive Economic Zone, Spain said that it had a claim to the

wreck under the terms of both Sovereign Immunity (UNCLOS) and the UNESCO 2001 Convention – which it ratified in 2005.

In May, 2008, the company finally acknowledged that the wreck was probably that of the Nuestra Senora de las Mercedes,

a Spanish warship sunk by the British navy, southwest of Portugal in 1804, while returning from South America.

Because most of the 17 tons of silver came from Peru, that country also filed claim against the company in August, 2008.

In June, 2009, a US Federal Court judge ruled that Odyssey must return every coin in its possession to Spain. The company

has said it will appeal the judge’s ruling.

Some archaeologists estimate that as many as 8,000 Spanish Colonial shipwrecks worldwide are waiting to be discovered.

PART IVThe Titanic

The United States leads when it comes to protecting the world’s most famous shipwreck, the ocean liner, Titanic. After it was discovered in 1985, Congress approved

“the RMS Titanic Maritime Memorial Act of 1986.”

The Act made it unlawful for anyone in the US to trade in artifacts from the wreck. Further to the Act, only one American company, RMS Titanic Inc., was granted,

permission to remove artifacts from the shipwreck, but only for the purposes of public exhibition.

In 2007, the US implemented further legislation to protect the wreck, as part of an international agreement with the United Kingdom and Canada.

The National Oceanic and Atmospheric Association (NOAA) will represent the US, regulating dives to Titanic from the United States.

The United Kingdom was the first country to sign the international agreement in 2003.

And, while acknowledging that

Titanic is, “a historical wreck of exceptional

international importance,” that

country has not stated how it plans to protect

the wreck.

Canada has not yet signed the international

agreement.

In March, RMS Titanic Inc. applied for a salvage award in US Federal Court. Despite the

fact that an estimated 33 million people worldwide have

seen its Titanic exhibit, the company says it’s lost money.

RMST asserts that the costs associated with the recovery

and conservation of the artifacts have exceeded

revenues from their display. It values the collection at $110

million US.

It’s now up to US District Judge Rebecca Smith to decide if RMST can sell the collection.

Where do we go from here?Government legislation provides everyone with the “rules of the road.” If there aren’t

any, Government is powerless to act.

This includes protecting marine archaeological sites, deciding what’s to be done with them

and who makes such decisions.

You can help by asking your politicians to support new federal legislation aimed at protecting & better managing

this country’s unique underwater cultural resources.

Here’s a few ideas as to how we can improve things:

• Shipwreck management legislation in Canada needs to be uniform nation-wide. But, each province can maintain its own authority - just as they do now when it comes to governing other areas like natural resources, transportation and health care.

• Canada needs to develop marine archaeology standards and procedures for companies involved in undersea oil and gas exploration. And, it needs to administer these in the same way that the United States does.

• Both Ottawa and the Provinces needs to better manage all shipwrecks – not just protect them by restricting access. And, it needs to allocate more resources in doing so. Right now it’s largely a case of “out of sight, out of mind!”

As we journey under the sea we will, undoubtedly, come in contact with more shipwrecks. The exploration, and exploitation, of natural resources in the world’s oceans is increasing rapidly, thanks largely to advancements in technology.

If we don’t take steps now to better protect and manage shipwrecks they will, most certainly, be destroyed or lost to the public for good.

Shipwrecks don’t belong to only a few! They belong to everyone – divers and non-divers alike. It’s only by working together that we can better protect and manage our shipwrecks.

“History is the social memory of the human experience.”

Northrope Fry

Professor

University of Toronto

Shipwrecks give us the opportunity to dive into history!

Photo SourcesProvince of BC

NOAA

Other

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