Shipwreck Characteristics

There are numerous sources of law that could govern a particular shipwreck and its access and use.  Which source of law applies to a particular long-lost shipwreck depends on the wreck’s characteristics, such as location, ownership, historical value, physical status and proposed use.

A. Location.

A shipwreck’s location is of paramount importance when ascertaining the rights a finder may have in the wreck.  As discussed in detail below, the location of the wreck is the primary factor for determining the law that governs the shipwreck and rights thereto. 

In evaluating the location of a shipwreck, two principle questions must be answered:  (1)  Are the waters in which the wreck rests “navigable”?  (2) Does the wreck rest on state submerged lands?  Answer both questions affirmatively and both federal maritime law and state law will govern the wreck and rights thereto.  Answer (1) affirmatively but (2) negatively and just federal maritime law will govern.  Answer (1) negatively and just state law will govern.

1. Navigable Waters.

The main source of law governing shipwrecks is federal maritime law which is comprised of federal statutes and regulations and the written decisions of admiralty judges over the years.  Federal maritime law is limited in scope, however; it can apply only to those wrecks resting in “navigable waters.”  If the wreck rests in non-navigable waters, the law of the state within whose boundaries the wreck rests governs.

“Navigable waters” are generally those waters susceptible of use as highways of interstate and international commerce.  These waters obviously include the sea and inland waters capable of navigation that empty into the sea.  They also include inland waters capable of navigation that are bound by two or more states.  The Columbia and Willamette Rivers are obvious examples of inland navigable waters; whereas a landlocked lake like Lake Chelan in Washington state is not.

2. State Submerged Lands.

The territorial jurisdiction of a state extends to its “submerged lands.”  These are lands under navigable inland waters within its boundaries, and under any adjacent sea extending three miles outward from its shoreline.[1]  The law of the state on whose submerged lands a long-lost shipwreck rests will apply directly or indirectly in some way.

3. National Marine Sanctuary.

A shipwreck resting within a national marine sanctuary, whether on state submerged lands or not, is governed by federal law governing access to and use of the sanctuary.  There are twelve national marine sanctuaries:  Olympic Coast, located off Washington state; Cordell Bank, off northern California; Gulf of the Farallones, off northern California; Monterey Bay; Channel Islands; Flower Garden Banks, off Texas; Florida Keys; Gray’s Reef, off Georgia; Monitor, off North Carolina; Stellwagon Bank, off Massachusetts; Hawaiian Islands Humpback Whale; and Fagatele Bay, off American Samoa.  One more is proposed, Thunder Bay, off Michigan in Lake Huron, primarily to preserve shipwrecks within its proposed boundary.

Attention should also be given to whether the shipwreck is located within the boundaries of a national or state park, monument or seashore.

4. Other Locations.

Other locations may determine the body of law governing use of and access to a shipwreck.  For example, finding a shipwreck in waters of an Indian Reservation, public works project, or a military training ground brings with it a whole body of law beyond the scope of this paper.

B. Ownership.

An important question for every long-lost shipwreck is whether the wreck is “abandoned.”  Obviously, access to and use of a wreck whose ownership has not been abandoned is subject to the rights of the owner. 

Determining whether a shipwreck is abandoned is a fact-intensive analysis that can defy logic because admiralty courts are reluctant to find abandonment.  Loss of a vessel at sea followed by a lengthy passage of time do not alone divest the owner of title, even if the owner has done nothing to find or recover the wreck.  Indeed, courts will not find abandonment when the finder of a long-lost wreck is unable to locate its owner after extensive efforts.  Some courts have reluctantly drawn a narrow exception when a wreck, such as the Atocha, has been lost for centuries and no one comes forward after extensive publicity to claim ownership.

Abandonment can only occur through a voluntary and affirmative act that clearly indicates an intent to repudiate ownership.  To show abandonment, you must be able to prove (1) the owner intended to abandon, and (2) physical acts by the owner carrying out that intent.  Rarely will a court find abandonment under this standard. 

A common situation occurs when a vessel sinks and the company insuring the vessel or her cargo pays the owner of the vessel or cargo for the total loss.  The owner’s acceptance of the insurance money impliedly transfers ownership of the vessel or cargo to the insurer via subrogation, although no one may even realize (or care) that this transfer has occurred.  The insurer then archives its files and does nothing further.  Decades later, someone finds the wreck and seeks ownership rights to it.  The wreck is now valuable, somehow the insurance company learns it once paid a claim on the wreck, and it comes forward to claim its ownership interest derived decades before.  The court will declare that the shipwreck is not abandoned and recognize the insurance company as the owner of that part of the wreck for which it paid the loss.

Courts are even more reluctant to find abandonment when a government authority owned the vessel when lost.  A government cannot abandon property unless it does so by formal, express declaration.  In the absence of such governmental action, civil war shipwrecks, military aircraft and other naval shipwrecks remain the government’s property, and their access and use must comply with the laws of that government authority or its successor.

C. Historical Importance.

A shipwreck with historic importance will garner more attention than one that is not.  In turn, the law seeks to protect the historic value of shipwrecks, and an admiralty court will reward a salvor that does its best to preserve and record historically and archaeologically significant aspects of a wreck before, during and after a recovery operation. 

The Abandoned Shipwreck Act (“ASA”) specifically aims to protect historically important shipwrecks on state submerged lands.  The ASA, discussed further below, characterizes historic shipwrecks as those that are included in or eligible for inclusion in the National Register.  To qualify for the National Register, a shipwreck must retain integrity of location, design, setting, materials, workmanship, feeling and association.  The shipwreck must also meet one or more of the following criteria:

(1) Be associated with events that have made a significant contribution to the broad patterns of our history; or
(2) Be associated with the lives of persons significant in our past; or
(3) Embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possesses high artistic values, or that represents a significant and distinguishable entity whose components may lack individual distinction; or
(4) Have yielded, or may likely yield, information important in prehistory or history.

Shipwrecks that generally will not qualify for the National Register are those less than 50 years old, owned by religious institutions and used for religious purposes, replicas, and collections of vessels, although exceptions can be made in certain circumstances.

D. Physical Status.

Whether a vessel is “embedded” in the seabed or coralline formations is legally significant for three reasons.  First, the ASA, discussed further below, applies to embedded shipwrecks on state submerged lands.  Second, ownership of an abandoned shipwreck embedded in lands other than state submerged lands may be vested with the owner of those lands.  Third, salvage of an embedded shipwreck may require contact with, if not destruction of, adjacent seabed, thereby potentially invoking environmental protection laws and oversight of an environmental protection agency or agencies.

The ASA defines “embedded” to mean firmly affixed in the submerged lands such that use of excavation tools is necessary to move bottom sediments or coral to gain access to the shipwreck or any part thereof.  Admiralty courts apply this “firmly affixed” standard even to shipwrecks not covered by the ASA.  Under the court decisions, a shipwreck need only be firmly affixed to be legally “embedded,” and the fact that only a portion of it is embedded or the contents of the wreck are accessible without need to excavate is irrelevant.

E. Proposed Use.

If your proposed use of a long-lost shipwreck is merely to visit and observe, feel free to do so.  Little, if any, legal concern is raised when use of a wreck does not disturb it, the natural resources around it, or another’s rights to the wreck.  As the extent of involvement with a wreck increases,

 so too do the legal concerns.  Merely photographing or videotaping a shipwreck may raise legal concerns by infringing on another’s rights to the wreck.  Obviously, disturbing and removing objects from the wreck or the natural resources around it raise numerous legal concerns.

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