Buried treasure

ODYSSEY Marine Exploration Inc is seeking permission from the UK Ministry of Defence to bring up the remains of a wreck lying half-a-mile down near the Strait of Gibraltar. The Florida-based company believes that the wreck is the remains of the HMS Sussex, which was lost in 1694 carrying a cargo of gold and silver coins. Odyssey Marine may be entitled to substantial compensation for the efforts it expends in salvaging the Sussex.

Just how substantial the compensation is will depend on Odyssey's ability to negotiate a contract with the Ministry of Defence while appeasing archaeological and preservationist communities who perceive that they also have an interest in the ultimate fate of the vessel. The Ministry of Defence asserts a right of title over British warships wherever they lie until sold or otherwise relinquished.

There are generally three ways in which a party may obtain either a salvage award or title to a public vessel on submerged lands. Firstly, title to such a vessel may be lost by capture or surrender during battle. Such vessels are often considered prizes of war, but the act of possession or control generally must occur before sinking. Confiscation is another method of obtaining title to a warship whereby a victor retains all of its enemy's property. The US Supreme Court has recognised that a state of war might give a sovereign a right to confiscate enemy property, but such confiscation is not automatic, and the enemy must actually seize the property in order for it to be forfeited. See Brown v United States, 12 US (8 Cranch) 110, 125-29 (1814).

Secondly, a party may obtain a salvage award or title to a public vessel through a binding international agreement transferring title between countries. On occasion this has occurred as a result of a general surrender after a war or recognised military campaign.

The final method is through an act of abandonment, gift, or sale by the vessel's flag nation in accordance with principles of domestic or international law. For years, courts have been plagued by the question of which standard of abandonment is applicable to warships. US courts have never been uniform in their opinions, but the US government's formal policy for the treatment of sunken warships expressly declares that title to a sunken foreign state craft can be transferred or abandoned only in accordance with the law of the foreign flag state. (Presidential Proclamation dated January 18, 2001).

The US government's proclaimed treatment of sunken warships has not been fully tested in the US courts. Some US courts have found that foreign nations abandoned their warships. In Sub-Sal, Inc v The Debraak, 84-296-CMW (D Del Feb 4, 1992), the court found that the British government had abandoned its brig of war, HMS Debraak, without any showing of express renunciation. Similarly, in Klein v Unidentified Wrecked and Abandoned Sailing Vessel, 758 F.2d 1511 (11th Cir 1985), the US successfully argued against the claim of the finder of the HMS Fowley, an eighteenth century British warship. The HMS Fowley was found on submerged land which was a national park near Miami, Florida. The National Park Service successfully argued that the wreck was abandoned and embedded on park service land, and therefore belonged to the US.

However, recently in Seahunt, Inc v The Unidentified Shipwreck Vessel(s), 221 F3d 634 (4th Cir 2000), Spain, with the assistance of the US government, contested the award of two of its Navy frigates, the La Galga and Juno, which were believed to be carrying hundreds of millions of dollars in gold and jewels in an action brought by salvors in the state of Virginia. The Federal Court of Appeals for the Fourth Circuit concluded that, although several treaties purported to abandon or cede state property over the centuries, none sufficiently identified the vessels to constitute conclusive evidence of abandonment. Furthermore, the court considered the US state department's position, which required an affirmative act to establish abandonment of a US warship. The court concluded that the same presumption against abandonment should be accorded foreign state craft.

Rapidly advancing survey technologies have greatly accelerated the number of historic wrecks being discovered. As deep-sea and subsoil recovery methods become more advanced, the potential for profit will fund future title disputes.