AND UNDERWATER ARCHAEOLOGY

Panel VI: Ocean Policy Opportunities

Saturday, January 10, 1998

Ocean’s Policy: New Institutions, Challenges and Opportunities

TWENTY SECOND ANNUAL CONFERENCE

Sponsored by

Center for Oceans Law and Policy

University of Virginia School of Law

Charlottesville, VA

Montego Bay, Jamaica

January 8-10, 1998

In beginning my remarks this morning, I would particularly like to extend my thanks to Virginia’s Center for Ocean Law and Policy, and in particular to Professors Moore and Nordquist, for providing me with this opportunity to identify the parameters of another oceans policy opportunity that we have in this new year.

In 1998, the world community will be trying to develop a number of international agreements dealing with shipwrecks lying in deep water beyond the limits of coastal State jurisdiction over the remnants of such marine disasters. I am referring to the following efforts:

-- UNESCO will begin elaboration of an international convention on the protection of underwater cultural heritage.

-- At long last a group of States may conclude an agreement providing protection for the wreck of RMS Titanic and its associated artifacts.

-- And a number of States are considering development of an international instrument establishing mechanisms for the protection of their warships resting in international waters and in other States’ national waters.

These developments present the international community with a unique opportunity to address and, hopefully, to resolve a number of questions:

-- What are the outer limits of coastal State jurisdiction over sunken shipwrecks?

-- How do vessels entitle to sovereign immunity, such as sunken warships, differ from sunken commercial and privately owned vessels?

– What is the proper public policy regarding shipwrecks? Should there be different policies for sunken warships, for modern wrecks, for ancient wrecks, for wrecks of historical or archaeological interest? What difference should it make if there is valuable cargo – treasure – on board any of these wrecks?

– Who should decide these issues? Are salvage law and admiralty courts up to the task? Should government historic resource management agencies decide? Should it be the business of foreign offices to resolve the issues?

– Regardless of how the foregoing questions are answered, should -- indeed can -- the salvage community and maritime historians and underwater archaeologists find a meeting of the minds?

I propose to summarize in greater detail the three international efforts I have just alluded to as a means of suggesting some possible answers to these questions.

At its 29^th General Conference last November in Paris, UNESCO decided to proceed with the development of an international convention for the protection of underwater cultural heritage for consideration for adoption at the 30th General Convention in two years’ time. The Secretariat intends to draft core articles for consideration by a group of Government experts late this summer. In developing this draft, consideration will undoubtedly be given to accommodating the many objections raised to the ILA draft convention [20 Marine Policy, no. 4, at 304-307 (July 1996)], not the least of which was to the proposal for a cultural heritage zone on the 200-mile continental shelf in which the coastal State would have exclusive jurisdiction to regulate activities with regard to all objects of cultural heritage located on its shelf [Report of the Meeting of Experts for the Protection of Underwater Cultural Heritage, UNESCO Headquarters, Paris, 22-24 May 1996, UNESCO Document CLT-96/CONF.605/6, Nov. 1996, summarized in Annex I to UNESCO Executive Board document 151 EX/10, 12 March 1997; Bederman, L.O.S. Lieder, Law of the Sea Institute Newsletter no. 37, vol. 6, no. 5, April 1995, at 7-8; Report of the Sixty-Seventh Conference of the International Law Association, Helsinki 12-17 August 1996, at 333 (report of Professor Nafziger, Rapporteur, to the Committee on Cultural Heritage Law); Blake, The Protection of Underwater Cultural Heritage, 455 I.C.L.Q. 819, 839 (1996)].

The ILA draft also would define cultural heritage very broadly as "all underwater traces of human existence". The draft would exclude cultural heritage from salvage law, would establish a presumption of abandonment at 50 years, would apply the treaty to all underwater cultural heritage lost or abandoned and underwater for at least 100 years, and would incorporate by reference the ICOMOS Charter for the Protection and Management of the Underwater Cultural Heritage (to which I shall return in a moment) that would set forth scientific standards defining State responsibilities under the Convention. Amendments by ICOMOS to the Charter would bind States party to the convention that do not opt out of each revision.

Clearly some of the issues that will have to be addressed by UNESCO and the government experts include what should be the definition of underwater cultural heritage to be protected; what, if any, should be the presumption of abandonment; should sunken warships be excluded; what should be the jurisdiction of States to protect underwater cultural heritage; should salvage law be excluded; and what should be the relationship of the ICOMOS Charter, and amendments thereto, to the new convention.

I think it is only fair to suggest that UNESCO’s timetable is extremely ambitious, and to forecast that this effort could well take much longer, particularly if UNESCO has any hope of adopting a treaty that is likely to receive broad international acceptance.

I would be revealing no secrets by saying that the British flag, White Star Line cruise liner, Royal Mail Ship Titanic continues to capture the public’s imagination. In the United States, the ship is presently the subject of a hit Broadway musical and the most expensive movie ever produced, as well as being the subject of two Discovery Channel-National Geographic Society documentaries of last summer’s failed effort by the current salvor-in-possession, RMS Titanic Inc., to recover a portion of Titanic’s hull (the most recent of which was televised this past Monday night in the United States). The continuing popularity of the story of the Titanic is visible in the hundreds of books written about her, in the thousands of people who visited the exhibits of Titanic artifacts displayed in the National Maritime Museum, Greenwich, England in 1994-1995, and more recently in RMS Titanic Inc’s exhibitions in Norfolk Virginia, Memphis Tennessee, and St. Petersburg Florida.

You will recall that the Titanic was lost at sea when she struck an iceberg late in the evening of April 14, 1912, on her maiden voyage from Southampton England, Cherbourg France, and Queenstown Ireland en route to New York City. She sank in about 2 hours 40 minutes in the early morning hours of April 15^th in 12,500 feet of ocean in waters of the northwest Atlantic 325 miles southeast of Newfoundland Canada. 1,523 of the 2,228 persons on board were lost; many of them went down with the ship.

The wreck was first located in 1985 by a team of French and American oceanographers in two and one-half miles of water beyond the limits of coastal State jurisdiction over shipwrecks; and has been subsequently visited in 1986, 1987, 1993, 1994, 1996 and 1997 by the Institut Francais pour la Recherche et L'Exploitation de la Mer (IFREMER), the French Government's undersea exploration agency, and the American company RMS Titanic, Inc. In addition, the site was filmed in 1991 during a Canadian-Soviet dive.

Some 4,000 objects have now been recovered from the debris over the years which surrounds the two sections of the hull which lie some 500 yards apart partially buried on the sea floor. [The section of hull plating lifted last summer by RMS Titanic Inc. broke free while being towed and lies farther away.]

But these activities have been accompanied by significant international and professional criticism – for violating the final resting place of many of the thousands who perished when the ship sank; and for disturbing the site and recovering objects without following accepted archaeological principles. Last Monday’s Discovery Channel presentation, "Titanic- The Investigation Begins", indicates RMS Titanic, Inc.’s archaeologist has documented location of at least some of the recovered artifacts. I am unaware if any of that documentation has been made public.

The wreck of the Titanic lies in international waters on the Canadian continental shelf. Yet shipwrecks are not natural resources of the continental shelf over which the coastal State has exclusive jurisdiction under international law including the Law of the Sea Convention. [See LOS Convention, articles 56 & 77.] Furthermore, the Titanic is not a vessel entitled to sovereign immunity. Consequently, there is no single State that has the legal right to control activities around, or provide protection to, the wreck site. However, national admiralty courts historically give credence and effect to judgments of sister admiralty courts, if the salvor-in-possession seeks such relief.

On the other hand, States do have jurisdiction to control the activities of their nationals, of vessels flying their flag, and of person using their ports or importing objects into their territory. [Cf. Blake, The Protection of Underwater Cultural Heritage, 45 I.C.L.Q. 819, 832 (1996).] But there is presently no agreed international legal regime for regulating such activities relating to the wreck of the Titanic, or any other ship of historic or archaeological importance, lying in international waters more than 24 miles from the baseline from which the breadth of the territorial sea is measured. Even if the wreck lies on the deep seabed, the international obligations of States are now only to preserve and dispose of all such objects for the benefit of mankind as a whole, paying particular regard to the preferential rights of the State or country of origin, the State of cultural origin, or the State of historical and archaeological origin [LOS Convention, article 149] and to protect objects of an archaeological and historical nature found at sea, and to cooperate for this purpose [LOS Convention, article 303(1)]. However, these rules do not affect the law of salvage [LOS Convention, article 303(3)] and, moreover, are without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological or historical nature [LOS Convention, article 303(4)].

So, if States with a common interest in protecting the wreck of the Titanic as a grave site or as a site of particular historical importance wish to join together in a cooperative effort, they could be expected to do so by an international agreement that obligates each State Party to take commonly agreed actions. These might include ensuring they each have in place national legislation to regulate an agreed set of activities. These activities might distinguish between the hull sections which contain the remains of many of those who perished as well as numerous artifacts, and the large debris field surrounding the hull sections that is less likely to contain any human remains. Visitation to the site could thus be regulated in a differentiated way, and any authorized entry into the hull sections or on-site examination of the debris field around the wreck of the Titanic be required to be consistent with accepted international standards for marine archaeology, such as those adopted by ICOMOS at its 1996 meeting in Belgrade, or adaptations thereof.

Sunken warships and military aircraft present a special challenge. Sunken warships and military aircraft are frequently war graves, and are likely to be dangerous because of unexploded ordnance or hazardous or noxious material on board. Sometimes they carried valuable cargo. They are frequently the object of divers who wish to recover objects – nee souvenirs – from the site. They are often located on the seabed of foreign coastal States.

Nevertheless, they were government property when they sank. Are they subject to salvage without the permission of the flag State? Without the permission of the coastal State?

If not, how can they be protected, particularly when they lie in foreign or international waters?

A few years ago, at the request of the United States Navy, I participated in discussions on these questions with a number of Governments with blue water navies. The result of those negotiations was the annexed document, to which I have added some annotations. The essence of this document is that sunken warships and military aircraft are not subject to the law of salvage or the law of finds, as there can be no presumed abandonment of title by the sovereign or presumed authorization to conduct salvage, and should be protected from unauthorized intrusions.

However, as you can imagine, there are many sunken warships and military aircraft located in foreign or international waters. Unfortunately at this time there is no generally agreed international regime either for recognition of the flag State’s continuing ownership of the wrecks or for their protection from unauthorized exploitation or plunder.

Consequently, I expect in 1998 attention will be paid to filling these gaps. One thing is certain, the United States Congress will have to enact new legislation to authorize the Federal Government to protect foreign owned warships and military aircraft located in our waters.

Archaeology is the scientific study of our past human culture through material remains. By its nature, archaeological excavation to uncover, document, and recover an artifact destroys the site context forever, and it can never be put back to preserve the relationships between the artifacts and their ambient environment. As a result, in situ preservation and non-intrusive research are preferred management policies.

Underwater archaeology is archaeology practiced in a submerged or underwater environment. It includes archaeological survey, documentation, and excavation performed in a marine environment. Underwater archaeology is a new science, having evolved only in the past 35 years since SCUBA techniques were first used by a trained archaeologist on a submerged site. The invention of SCUBA led to the stripping of most wrecks in shallow waters by souvenir hunters, treasure hunters and professional salvors.

Most shallow water is subject to coastal State jurisdiction over shipwrecks. On the other hand, deep water archaeological sites, located in depths greater than 300 meters, are generally beyond those jurisdictional limits. Deep water sites have not yet been visited in great numbers because of financial and technical constraints, but those that have been visited have been the subject of considerable public and professional interest. The archaeological community in the past 20 years has sought increased measures to protect submerged sites, particularly shipwrecks, through legislation and through governmental and professional regulation.

For example, the 1996 General Conference of the International Council on Monuments and Sites (ICOMOS) adopted a charter on the protection and management of underwater cultural heritage. The full text is attached to this paper. It sets out the following general principles:

-- investigations should avoid disturbance of human remains;

-- the preferred policy is in situ preservation;

-- non-destructive techniques, non-intrusive survey and sampling should be followed in preference to recovery of objects from the debris field;

-- investigations should not adversely impact the site more than is necessary for the research or mitigatory objectives of the project; and

-- investigations should be strictly regulated to ensure proper scientific recording of historical, cultural and archaeological information.

The Charter also provides guidelines for design of the project research, funding, time-table for the completion of the project, development of research objectives, methodology and techniques, professional qualifications, preliminary investigation, documentation, conservation of artifacts, safety, reporting, curation of the project collection, and dissemination of information.

Some of these guidelines conflict with the principles of salvage and salvage law.

Salvage law has only recently begun to face claims of the historical or archaeological value of sunken ships. Salvage law is traditionally the province of national admiralty courts applying either customary law or one of two international treaties, the 1910 Brussels or the 1989 IMO Salvage Conventions. As neither customary nor conventional salvage law now has a widely accepted set of rules addressing the historical or archaeological value of sunken ships, some argue for limitations on salvage.

Salvage is the rendering of assistance to vessels and their cargo in distress at sea, whether afloat, shipwrecked or sunken. The basic purpose of traditional salvage law is to encourage recovery of property lost at sea so that the property can be returned to commerce. Salvors are encouraged by being entitled to a reward for successful recovery, or if the property is found to have been abandoned, to ownership of the recovered property. The traditional law of salvage thus gives the salvor a right to compensation for services rendered, on behalf of the owner, to the property, not title to the property salved, by allowing a lien against the property which is enforceable in admiralty court if the salvor has possession of the property. Wrecked or sunken property is subject to the salvage services of the first comer. If the owner of the property, or the master of the vessel, has expressly and reasonably prohibited salvage services, the salvor of that property is not entitled to an award. A salvor may be deprived of the whole or part of the award to the extent that the salvage operations have become necessary or more difficult because of the fault or neglect of the salvor, or if the salvor has been guilty of fraud or other dishonest conduct.

The most recent modification to salvage law is contained in the 1989 Salvage Convention, which incorporates the essential provisions of traditional salvage law codified in the 1910 Convention. The 1989 Salvage Convention offers increased protection for the marine environment by requiring both the vessel owner and the salvor to use due care to protect the marine environment, and by permitting the salvor to be rewarded for preventing or minimizing damage to the environment during salvage operations.

The 1910 Convention has no provisions expressly addressing historic shipwrecks. The 1989 Convention permits a State Party to reserve the right not to apply the Convention’s provisions to maritime cultural property of prehistoric, archaeological or historic interests that is situated on the sea-bed. (Only a few of the States party have done so.) It is not settled whether the 1989 Convention applies ipso facto to historic shipwrecks in the absence of such a choice. Neither treaty requires the use of proper archaeological techniques to historic shipwrecks, or the preservation of the scientific, historic, and archaeological integrity and provenance of the wreck.

The 1910 Brussels Convention does not apply to warships or other Government ships appropriated exclusively to a public service. The 1989 Salvage Convention also does not apply to warships or (in modern terminology) other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognized principles of international law, unless that State decides otherwise, and so notifies the IMO Secretary-General of the terms and conditions of such application.

The 1910 Convention remains in force for some 70 States. The 1989 Salvage Convention entered into force July 14, 1996, with almost 20 parties. The 1989 Salvage Convention replaces the 1910 Convention for States Party to both Conventions to the extent their provisions are incompatible.

These two treaties do not address the law of finds. If the property is abandoned, the law of finds, rather than the law of salvage, applies, permitting the admiralty court to award ownership of the property to the finder. Some admiralty courts favors the law of salvage, not the law of finds, because salvage law's purposes, assumptions and rules, directed toward the protection and preservation of maritime property, are more consonant with societal needs and interests. The U.S. Supreme Court will likely rule by this summer in a case pitting the application of admiralty salvage law against the Abandoned Shipwreck Act, including the issue of whether a State of the Union must prove the wreck is abandoned or whether a ship lost for some 150 years should be presumed abandoned. [California v. Deep Sea Research Inc. (The Brother Jonathan), No. 96-1400, argued Dec. 1, 1997; 89 F.3d 680 (9th Cir. 1996), aff'g 883 F.Supp. 1343 (N.D.Cal. 1995).]

Some modern cases have applied the law of finds to instances of long lost and abandoned wrecks. The Spanish galleon Nuestra Senora de Atocha with a cargo of gold and other valuable sank in a hurricane in 1622 off the coast of Florida. In 1972, the wreck was located. Gold, silver, artifacts and armament valued at $6 million were recovered. U.S. courts upheld the finders' ownership and possession against the claim of the United States [Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 408 F.Supp. 907 (D. Fla. 1976), affirmed 569 F.2d 330 (5th Cir. 1978) (Treasure Salvors I); Florida Department of State v. Treasure Salvors, Inc., 621 F.2d 1340 (5th Cir. 1980) (Treasure Salvors II), affirmed in part and reversed in part, 458 U.S. 670 (1982), on remand 689 F.2d 1254 (5th Cir. 1982); Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 640 F.2d 560 (5th Cir. 1981) (Treasure Salvors III), on remand 546 F. Supp. 919 (S.D. Fla. 1981); Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 556 F.Supp. 1319 (S.D. Fla. 1983) (Treasure Salvors IV)]. On the other hand, the law of salvage was applied in the case of the SS Central America, a paddle-wheel steamer, lost in a hurricane in September 1867 off Cape Fear, North Carolina, with its cargo of gold [Columbus-America Discovery Group v. Atlantic Mutual Ins. Co., 974 F.2d 450 (4^th Cir. 1992), cert. denied, –U.S.–, 113 S.Ct. 1625 (1993)].

[Roach, "Salvage law (historic wrecks)," Encyclopedia of Underwater and Maritime Archaeology 353-354 (1997).]

Treasure-hunting is the search for intrinsically valuable objects from sites, often historic or archaeological, for personal or private gain. In this context treasure-hunting can be defined as the search for and recovery of precious metals, jewelry, or other objects of monetary value which can be sold or marketed for a profit. This is in direct contrast to scientific archaeology, wherein the search is for greater understanding of past history through the study of those same material cultural remains. Nowadays, treasure-hunting can mean highly sophisticated and well-funded multinational corporations seeking specific shipwrecks for the treasure they may contain. Some treasure-hunters today profit not from selling valuable artefacts, but by selling high-risk shares in limited partnerships to the public. The most direct method for ascertaining whether a project is scientific archaeology or treasure salvage is to learn who owns the artefacts and where they are going, since professional archaeologists do not keep or sell the artefacts they study.

Archaeologists, the U.S. Navy and other Federal historic resource management agencies argue that as currently practiced, treasure-hunting is incompatible with scientific archaeology. [It was primarily for this reason that Congress, in enacting the Abandoned Shipwreck Act, 43 U.S. Code 2101 et seq., removed historic shipwrecks to which the Act applied from the law of salvage and finds. H. Rep. 100-514(I), at 2; H.Rep. 100-514(II), at 8; 1988 U.S.C.C.A.N. 371 & 377.] An average shipwreck might contain an assemblage of several thousand artefacts, whose relationships to one another and to the ship itself must be understood and recorded to have any significant meaning. When the provenance and context of each artifact is not precisely recorded, as is usually the case with treasure-hunters not willing to devote more resources than necessary to obtain the maximum return with the minimum outlay, the information and interpretation potential are lost forever. When thousands of artefacts are multiplied by the thousands of possible interpretations between them, and then multiplied by the hundreds of salvaged shipwrecks, the large-scale loss of information is more easily perceived. Moreover, as treasure-salvors are interested only in a small fraction of the total artefact assemblage, the remainder is ignored or destroyed. Unfortunately, it is often the artefacts of less monetary value which are the rarest, and therefore of greater historic or archaeological significance than the "treasure". Historic shipwrecks are non-renewable resources; once a site is disturbed and its artefacts dispersed, the site can never be restored, studied or shared with others. [Johnston, "Treasure-hunting," Encyclopedia of Underwater and Maritime Archaeology 424, 425 (1997).]

On the other hand, some salvors who specialize in historic shipwrecks (and eschew the term treasure-salvor) point out that not every old shipwreck is of historic or archaeological value. They argue that many shipwrecks are simply ships engaged in ordinary seaborne commerce and played no significant or pivotal role in history either as a result of their sinking or in their use while afloat. They point out that the functions and uses of such ships were mundane and common, and that their discovery and study adds nothing to an understanding of history, but merely confirm already known information.

Historic ship salvors also argue that for artifacts or sites to be archaeologically important they should add significant previously unknown data. They point out that the collection of redundant data and artifacts is neither good science nor a cost effective use of funds and resources, whether they be public or private funds.

These historic shipwreck salvors do acknowledge that every historic shipwreck site must be explored with the assumption that it mighty yield new and unknown data, and that therefore exploration and recovery must always be carried out under archaeological guidelines that are reasonable. They point out that keeping accurate on-site data is essential for the salvor to be able to maximize his recoveries and understanding of the site by the salvor and those who come thereafter.

[Historic Shipwreck Salvage Policy Council, Micco, Florida, Policy Statement, September 1995.]

Some salvors don’t want to work under any type of archaeological guidelines no matter how reasonable. Some archaeologists want absolutely no private sector recovery of artefacts from shipwrecks. Are there salvors, marine historians and underwater archaeologists willing to search for a middle ground that allows all to get what’s most important to them?

Until recently, many archaeologists took comfort in the fact that inaccessible sites remained in the world, deep down in the ocean, beyond the reach of technology and greed. That is no longer the case. Today there are only a few States and a few companies that have the capability to engage in deep water recovery of objects. There are, however, fewer maritime historians or underwater archaeologists or associated institutions with the capability of conducting their scientific work in deep water.

Clearly, commercial interests, archaeological research, and even recreational diving to these depths are in the future. No nation has been fully successful in eradicating private collecting and trafficking in antiquities acquired from lanes and water under their control. Protection of historic shipwrecks in deep water is even more problematic. With the advent of new technologies that make these non-renewable resources accessible, there is an urgency for the international community to move from debating the issues to taking action. All the more frustrating is the lack of any comprehensive international legal regime in international waters that, like national statutes, could regulate work on sites and protect those of significance.

There are many values associated with wrecks that lie on the seabed. Those values are memorial, commercial, recreational, or archeological, or in combination. Successful strategies for the future will ensure that no one value prevails, that interests are balanced, and that everyone with an interest sits at the table, from whatever sector or nation.

For the archaeological community, this means a realization that everything cannot be preserved, and that mechanisms must be put into place to ensure that commercial interests never override or destroy significant archaeological resources in the name of profit. At the same time, the archaeological community should capitalize on the tremendous research opportunities presented by deep water sites, and undertake projects that develop specific techniques for deep water archaeological survey and excavation of significant sites. [Delgado, "Deep water sites," Encyclopedia of Underwater and Maritime Archaeology 128 (1997).]

For the salvage community, this means recognizing the legitimacy of the archaeological interests and accommodating those values. One eminent British Queen’s Counsel and salvage law expert has made this point in urging adoption of a Protocol to the 1989 Salvage Convention to achieve proper control in the public interest of historic and archaeological remains which are or may be subject to salvage operations. He suggests this can be done through the designation of specific areas or wrecks as protected from unlicensed interference and subject to enforcement by injunctive relief. Such a Protocol (and the necessary national implementing legislation) should also require the admiralty court to take into consideration the extent to which (in an applicable case) the salvor has complied with current archaeological standards and giving the court power to reduce or forfeit the award for misconduct if he does not. [Brice, "Salvage and the underwater cultural heritage," 20 Marine Policy, no. 4, July 1996, 337, 342. Brice is opposed to any treaty specifically excluding the law of salvage, as admiralty law is in the process of making this accommodation.]

I submit that the law has now evolved to the point where both salvors and finders of historic shipwrecks should be required to use proper archaeological techniques and to preserve the scientific, historic, and archaeological integrity and provenance of the wreck. To do so would be consistent with the traditional law of salvage which considers the skill of the salvor when making a salvage award. Several U.S. admiralty courts have recognized that successful recovery of objects of archaeological and historical importance will be rewarded if recognized archaeological principles are followed by the salvors [Columbus-America Discovery Group v. Atlantic Mutual Ins. Co., 1992 AMC 2705, 2728 (E.D. Va. 1994); 1995 AMC 1985, 2001, 56 F.3d 556, 569, 573 (4^th Cir. 1995); MDM Salvage, Inc., 1987 AMC 537, 631 F.Supp 308 (S.D. Fla. 1986); Klein v. Unidentified Vessel, 1985 AMC 2970, 2975 (11^th Cir.); RMS Titanic Inc. v. Wreck, 1996 AMC 2481, 2493 (E.D. Va. 1996)].

But what should be done with recovered artifacts? Archaeologists are professionally obliged not to support the sale of artifacts for profit; rather they are required to support keeping intact collections of artifacts and in the public domain, so that they can be studied in the future as new research technologies become available. Salvors, in contrast, believe they should be able to sell whatever recovered artifacts they possess for profit, and thus meet their expenses and obtain capital for future expeditions. How can these positions be reconciled?

One possibility is to engage the salvors in a multi-media effort, where profits are generated from films of government-permitted recovery effort, exhibitions of the recovered artifacts, book sales, sales of reproductions, which the original artifacts are maintain in a publicly-accessible and publicly-owned facility or museum.

In any event and in conclusion, it seems obvious that these groups are going to have work together if there is to be a viable treaty adopted by UNESCO, a suitable agreement for the Titanic, and a workable agreement on sunken warships. The competing interests are going to have to be balanced. [Blake, The Protection of Underwater Cultural Heritage, 45 I.C.L.Q. 819, 841 (1996).]

Fortunately, the Third UN Conference on the Law of the Sea showed that this could be done. Fortunately also, the development in the United States of the Abandoned Shipwreck Act guidelines [55 Fed. Reg. 50116, Dec. 4, 1990] showed this could be done. Both examples, however, make it clear that acceptable outcomes do not come easily, quickly, or without compromise, as was evident in development of the Programmatic Agreement among NOAA, The Advisory Council on Historic Preservation, and the State of Florida for Historical Resources Management in the Florida Keys National Marine Sanctuary. This Agreement is the first U.S. Federal agency historic resource management program to permit private commercial salvage of historic public resources. whether this Agreement or the Abandoned Shipwreck Act can or will be used as model for in other areas of the marine environment remains to be seen. [Although this agreement is not signed by all parties at this time, is being implemented as a matter of policy by NOAA and Florida. The regulations implementing this Programmatic Agreement's permit system have been in effect since July 1, 1997. 15 CFR Part 922 Subpart P, added by 62 Fed. Reg. 32161, June 12, 1997.]

Certainly with the great popularity of the new movie Titanic, and the continued interest and search for history and treasure, I expect that 1998 will be a busy time. I encourage your active participation. It will be most welcome.