Salvaged Art & Antiquities: At the Mercy of Maritime Law

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ABSTRACT

SALVAGED ART AND ANTIQUITIES: AT THE MERCY OF MARITIME LAW

This study suggests laws be more concrete in the repatriation of artifacts

concerning maritime recovery of arts and antiquities. Arts administrators need to be

better informed of the maritime laws and rulings that affect antiquities in museums and

galleries. Research into this thesis has provided evidence that the grey areas in the

maritime and admiralty rulings are responsible for removal of arts and antiquities from

museums. The researcher examines several cases of maritime and admiralty laws

rulings to illustrate the weaknesses and consequent failures of current policies that

support recommendations for change. The suggestions for improvement resulted

through a research process that sought to answer one of this studys critical analysis

questions: How can arts administrators prevent future repercussions to collections

found by treasure wreck salvors, with the gray areas of the maritime and admiralty laws,

in regard to repatriation of the artifacts?

Carla H. SalterOctober 2012


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Dedication

I dedicate this work, with love, to my parents Bernard and Betty Klosowski. They always

believed in me and my dreams. And To my son, Richard Wayne Cuddy III, who had the

courage to head for distant horizons


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SALVAGED ART AND ANTIQUITIES: AT THE MERCY OF MARITIME LAW

By

Carla Hope Salter

A Thesis Submitted To the Faculty of Art Administration Department

in Partial Fulfillment of the Requirements

For the Degree of Master of Arts in Arts Administration

Savannah College of Art and Design

Carla H. Salter

E-Learning Campus

October 2012


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2012 Carla Hope Salter


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ACKNOWLEDGMENTS

I want to thank Savannah College of Art and Design for accepting me into the

Masters Program for Arts Administration. It has been an incredible experience, and I

have thoroughly enjoyed the learning process and getting to know everyone. I want to

thank my thesis committee chair Professor Patrick Kelsey, and Professors Chance

Farago and Thomas Asmuth, my committee members, for all of their patience and

assistance with questions and issues I brought to them.

I would like to acknowledge and thank Brenda Lewis, Director of Exhibits at the

Maryland Science Center for her support and patience with my research questions. Her

knowledge of shipwrecks, Marine Archaeology and Marine Biology were key factors in

answers to most of my questions of her. I would also like to thank Kim Alderman,

Attorney and Professor at the University of Wisconsin Law School, for her assistance

with questions dealing directly with the Black Swancase.

Liz Shows of Odyssey Marine Exploration, LLC was of invaluable assistance

fielding research questions for information and statistics. I want to thank her for all the

effort and people she brought in to help me with the questions dealing with salvage and

treasure that I had.

Many thanks go to Ms. Sharon Drager, of Mel Fishers Treasures in Key West,

FL; she and the people of Mel Fishers group were extremely helpful with research on

the ongoing saga of theAtochatreasure. Another note of appreciation goes to the

Archaeologist, Corey Malcom at Mel Fishers Heritage Society, in Key West, FL. He was

extremely informative in his interview. He generously granted the researcher of this

study the use of artist images of the Nuestra Seora Del La Atocha and artifacts

recovered by the museum.


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TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION ..................................................................................... ..8

1.1 The Research Questions 11

1.2 Research Objectives ...11

1.3 Modern Maritime Impacts on Salvaged Arts and Antiquities ........................... .14

CHAPTER 2: LITERATURE REVIEW ......................................................................... ..17

2.1 Salvage Convention of 1910..21

2.1.1 Abandoned Shipwreck Act of 1987...21

2.1.2 Finds...23

2.1.3. Prizes...24

2.2 Early Salvage Attempts................................................................................... 24

2.3 Captain Sam Bellamy and the Pirate Ship Wydah..31

CHAPTER 3: RESEARCH METHODOLGY .................................................................. 35

3.1 Qualitative and Theoretical Perspectives Methods.......................................... 35

3.2 Multi-Method Research................................................................................... 37

CHAPTER 4:RESULTS AND DISCUSSION ................................................................ 41

Case Studies.. 39

4.1 Safeguarding of Cultural Heritage.41

4.2 Salvage Impact on Archaeology and Culture..42

4.3 International Law Protecting Underwater Cultural Heritage..45

4.4 Maryland Science Center47

4.5 The Fate of the Nuestra Seora de la Mercedes; Code Name: Black

Swan.50


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4.5.1 Follow Up on the Case of the Nuestra Seora de las Mercedes.52

4.6 The Nuestra Seora de la Atocha and Mel Fishers Treasures...54

4.7 Mel Fishers Heritage Society554.8 Summary...57

CHAPTER 5:CONCLUSION AND RECOMMENDATIONS ................................... ....60

BIBLIOGRAPHY ........................................................................................................... 62

APPENDIX A: MAPS .................................................................................................... 66

APPENDIX B: ARTIFACTS ........................................................................................... 68

APPENDIX C: EXAMPLES OF A FLEET SHIP ............................................................. 75


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ILLUSTRATIONS

Figures

1. Descripcin del Districto Del Audiencia Del Hispaniola by Antonio de Herrera y

Tordesillas, Madrid, 1601 67

2. Sword, Before & After 69

3. Silver8 RealesCoin 70

4. Gold 4 EscudosCoin 71

5. Iron Helmet 72

6. Papal Bulla 73

7. Wallpa Tupu 74

8. Artists rendering of theNuestra Seora de la Atocha. 76

9. Artists rendering of theNuestra Seora de la Mar. 77

10. Model of the sinking of theAtochacreated by Dan ONeill. 78

TABLES

1.1Median Annual Attendance for Different Museums 30


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CHAPTER 1: INTRODUCTION AND BACKGROUND

"The ship was cheered, the harbor cleared, merrily did we drop below the kirk,

below the hill, below the lighthouse top. The sun came up upon the left, out of the seacame he! And he shone bright and on the right went down into the sea .1

Throughout the centuries sagas were penned in epic poems and prose about the

great tales of the seas, from Homers Odyssey2to the epic of Beowulf, and the cursed

Seafarer of Samuel Taylor Coleridges Rime of the Ancient Mariner. There has been a

fascination with the sea faring life of adventurers, traders and pirates. Since mankind

first took to the ocean for maritime trade, supplies and war ships carried all the comforts

of civilization. There have been merchant ships, war frigate's, fishermen and

monumental armadas from Spain which carried Kings Ransoms and her Queens

dowries across the emerald fathoms of the ocean.3From the Phoenicians, the Queen of

Sheba, the Minoans on the Aegean Sea, the merchant traders, pirates, privateers, and

the world conquerors all played a role in shipping of goods treasures arts and

antiquities. Many ships docked at the harbor of Antietam at the end of the Silk Road and

took on treasures and spices of the Orient to convey to other parts of the world.

Ships laden with gold, pearls, silks, incense, spices and precious oils embarked

on perilous journeys across the worlds seven seas. Ports of call and harbors awaited

fantastic cargoes. Along with these wondrous treasures came the dangers of the open

sea. Hurricanes, typhoons, sickness and pirates all played a hand in whether these

1A stanza from the epic poem The Rime of the Ancient Marinerby Samuel Taylor Coleridge penned in

1797.

2Homer dates to between 750 to 650 BC. The poem mainly centers on the Greek hero Odysseus (or

Ulysses, as he was known in Roman myths) and his journey home, across the sea, after the fall of Troy. It takes

Odysseus ten years to reach Ithaca after the ten-year Trojan War.

3Bob Weller. Salvaging Spanish Sunken Treasure.(Lake Worth. Crossed Anchors Salvage. 2009.)


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ships made their home ports or not. One port of call that pirates and merchants alike

frequented was Port Royal Jamaica. It was known as the Treasury of the West Indiesthe worlds wickedest city. At 11:40 a.m. on June 7, 1692, three earthquakes rumbled

through Port Royal, and part of the city sank into the sea. The ruins scattered in the

Kingston Harbor, and the remains of the city encompass 13 acres at depths of up to 40

feet. Archaeological investigations of the site began in 1959, with a group known as

Geographic-Smithsonian-Link. In 1981, the Nautical Archaeology Program of Texas

A&M University headed another archaeological exploration. The skeleton of a British

ship the H.M.S. Swan, historical documents, organic artifacts, and a vast amount of

architectural debris were discovered in the turbid waters. The sunken 17th century city

was once a bustling place where buccaneers including the infamous Captain Henry

Morgan docked in search of rum, women and treasure.4

Pirates looted merchant ships that carried gold, stealing off in rapid sloops with

their precious treasure and cargo. Hurricanes came and toppled fleets of ships sending

them to the watery grave that awaited them below. Sometimes the ships would become

waterlogged and drift aimlessly half in and half out of the water, and the treasures would

be jettisoned to allow the crew to try and take the ship into shore. Sometimes ships

were intentionally run aground to try and save cargos and crews.5

Ships captains followed the trade winds to make time and get to harbor on time.

The trade winds are a wind that blows steadily towards the thermal equator, and they

deflect westwardly by the eastward rotation of the earth.6Meteorological studies show

4Robert F. Burgess. Sinkings, Salvages and Shipwrecks. (Lincoln. American Heritage Press. 1970.)

5Keith Huntress.Narratives of Shipwrecks and Disasters. (Ames. The Iowa State University Press. 1974)

6Terence Grocott.Shipwrecks of the Revolutionary & Napoleonic Era. (Mechanicsburg. Stackpole Books.

1997)


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that close to the equatorial line there are converging winds from the Northern and

Southern hemispheres which tend to cancel each other out. This is a phenomenoncaused by the extreme high pressure and heat of the area. These areas near the

equator became known as the horse latitudes7because ships foundered in the

doldrums that affect the sea there. No wind would be available for the ships sails to

hold, and the crews would be forced to jettison cargo into the sea, such as treasures

and livestock which even included their horses. The lessening of the loads allowed

some ships to row into a place where they might pick up a breeze and possibly continue

underway.

These jettisoned treasures were in most cases, lost to anyone, and there were

no recovery attempts in that area of the seas.

Sovereign states tried to protect these fleets of ships with the likes of the West

Indies Trading Company out of Britain trying to keep the ships from pirates and plunder.

Ships manifests read like a castle's contents. The law of the sea at the time 16th and

17th century fell under the basic premise of finders keepers if a ship foundered and/or

ran ashore on rocks. Whoever survived the wreck had maritime authority to reclaim that

wreck for supplies that might have survived the storms or washed ashore, or beach

combers who might happen upon the wreckage could claim the ship as their own and

take from it whatever they could get.8Pirates, on the other hand, plundered and

pillaged taking the riches for their own.

Some of the first, modern maritime laws took place on the books in 1906 stating

that wrecks of sovereign states, classified as a warship under commission could not be

7"horse latitude". Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica

Inc., 2012. Web. .

8Arthur T. Vanderbilt II. Treasure Wreck: The Fortunes and Fate of the Pirate Ship Wydah.(Atglen.

Schiffer Publishing. 2007)


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salvaged by anyone. If the vessel was salvaged, it was stated that it remained under the

rule of a sovereign nation that came from and was to be returned. As time went on, artsand antiquities were salvaged by divers and collectors. These artifacts and antiquities

found their way to private collections and museums.

The purpose of this thesis is to look into the maritime and Admiralty laws that are

on the books currently and to examine their roles in the repatriation and provenance of

arts and antiquities that are salvaged from shipwrecks, and how these issues affect the

arts administration field. Primary research and analysis has not shown any established

order of repatriation on the books in maritime and Admiralty law; only that active-duty

naval vessels of a noncommercial status remained the property of the countries that

commissioned them. This brings up the issue of whether or not maritime laws should

actually be helpful in the repatriation of arts and antiquities from salvaged wrecks, and if

so, how the rulings differ. This paper researches and analyzes the effects and impact of

maritime law on Museum collections, private collectors, cultural ramifications and the

impact on the arts administration field, and perhaps shows gaps in the laws that no set

law of repatriation truly exists in regard to salvaged treasure, arts and antiquities.

A review of relevant literature surrounding the recovery of shipwrecked arts and

antiquities and the sovereign states involved, viewed from government, art,

archaeological, and media perspectives help to determine the scope, needs and

limitations involved in answering the studys main research question. A range of

statutory shortcomings regarding the repatriation of salvaged property, identified

through this probe, which contributed to this studys recommendations for advancement.

In order to justify the authors proposals, interviews were conducted with curators of

museums, attorneys specializing in cultural property, museum executives, and

archaeologists.


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1.1 The Research QuestionsWhy are salvaged art and antiquities at the mercy of maritime law, and how can

arts administrators prevent future repercussions to collections found by treasure

salvors, with the gray areas of the maritime and admiralty laws, in regard to repatriation

of the artifacts?

In regard to salvaged art and antiquities from shipwrecks, if a state or

government protests the salvage of the ship and artifacts on board under the Maritime

laws, Law of the Sea Conventions, and the Shipwreck Act of 1987, the country or state

in question can file court papers and declare the ship/ shipwreck was a voyage

undertaken by the sovereignty of that country, even though it seems that no known

formal law for repatriation of salvaged art and antiquities exists. This impacts the Arts

Administration field on several levels, from the legal and ethical standpoint dealing with

art and antiquities, the archaeological insertion that treasures should remain in situ9on

wreck sites, and the possible negative impact on museums and galleries losing parts or

all of the valuable collections.

Should the antiquities be subject to repatriation if the antiquities are alienated

from their archaeological context? One of the problems in the repatriation of artifacts is

that most of the laws concern looting and pillaging of artifacts in war time. The issues

that this paper investigates are the difference of the repatriation of salvaged art and

artifacts and the laws that exist as opposed to the standard laws of the looted artifacts.

There is a difference between artifacts discovered as a salvage operation and one of

war. When the original treasures were transported on a ship, and it was taken down by

9in situ- in the natural or original position or place. Latin, in position. First Known Use: 1740

http://www.merriam-webster.com/dictionary/in situ


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a hurricane that does not constitute an act of war so traditional laws of repatriation

should not apply. It has been argued that the rules under which time the fleets sailedshould be applied at this time. The rules are in some cases over 300 years old. These

results should not only improve an arts administrators consideration of salvaged art and

antiquities, but also serve to illustrate the necessity of international cooperation with

regard to the enforcement of repatriation laws under the maritime and admiralty

jurisdiction.

Partage10is the practice of sharing found antiquities between countries. This

was practiced for many years until into the early 20thcentury when the practice was

discontinued. This has contributed to some of the repatriation of artifacts. The flood of

retentionist cultural property laws essentially put a stop to the practice. There is no

longer a guideline for the sharing of artifacts as there once was.11Since that is the

case, the laws of repatriation have been tightened, especially in the cases of looted

antiquities. In the case of a salvaged shipwreck, one might ask if the laws would apply,

since these are not cases of looted or plundered treasure, or acquired by an act of war.

The salvaged antiquities are removed from watery graves and brought into the realm of

the modern museum and gallery.

The purpose of this research project is to shed light on the lesser known issue

of salvaged arts and antiquities, and how they are affected by the Maritime and

Admiralty courts and their decisions on repatriation of the artifacts. The researcher of

this thesis sheds light on the impermanent rules of the Admiralty courts and how these

rules can be adapted to suit the situation. The author of this thesis wants this research

10Partage-Division; the act of dividing or sharing. http://dictionary.reference.com/browse/partage

11 James Cunos book Who Owns Antiquity? The Battle over Our Ancient Heritage.discusses the

practice of thepartageand he discusses the issues of cultural property and who it belongs to.


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in this particular study to aid in the creation of legal procedures that will be more

concrete in regard to the treasures on shipwrecks. The researcher hopes that this studymay hold some positive impact on the field of arts administration. This study is of

considerable interest to the researcher because of her interest in art history and laws

that impact cultural artifacts, as well as her degree studies in the field of arts

administration.

The methods that this researcher applies are the use of secondary sources,

such as books, documents and legal briefs. First hand sources are utilized for interviews

and data regarding the case studies of salvaged ship wrecks and the treasures they

carried. The data has been collected and analyzed for similarities, differences and the

gaps that became evident as the research continued.

Limitations to this study lay in the fact that most art administrators are not

lawyers, nor do they specialize in maritime and Admiralty laws, and how this applies to

the salvaged arts and antiquities that an arts administrator or museum curator may have

in their collections. This study will be most beneficial to the arts administration field, but

may not be a mainstream discovery; therefore the access to this is limited mostly to

scholars, academics, law professors and arts administrators.

1.2 Modern Maritime Impacts on Salvaged Arts and Antiquities

Questions arose when mainstream media covered salvage operations such as

Mel Fisher's 1982 discovery of the Nuestra Seora de la Atocha, a Spanish wreck from

1622. The wreck was discovered off the Florida Keys and after Mr. Fisher salvaged the

arts and antiquities board what was left of the ship, Spain and the United States battled

Mr. Fisher, for possession of the treasures.

Mr. Fisher contested maritime laws stating that he was within the territorial

waters of the United States and the ship was not a commissioned warship. In his case,


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he won the battle against the existing maritime and Admiralty laws of the time. This is

one of many cases that have been argued in maritime and Admiralty courts of law allover the world.

In recent events, a Spanish ship was located by the salvage company known as

Odyssey Marine Explorations, Inc. They salvaged the wreck, investing $24 million of

their own money into the project. Spain proceeded to sue them under the sovereignty

act claiming that it was a 36 gun frigate from the 1800s and that it fell under the

category of warship. Spain claimed that all of the gold silver and treasure on board

remained the property of sovereign states of Spain and they had never declined

ownership of the ship. After five years, eight dismissals from maritime courts against

Spain, the case appeared before one judge in the federal Admiralty court. He listened to

the appeal of the Spanish government and without further ado sent back $550 million

worth of treasure and artifacts to the Spanish government thereby overruling and setting

null all previous court judgments against Spain.

Some archaeologists believe that treasure salvors are nothing more than grave

robbers that seek to destroy the shipwreck sites. Others, such as Bob Weller, who is a

veteran treasure diver since the 1960s, emphasizes that not only is treasure salvage

rewarding in a financial way, but there is the knowledge obtained about the history of

the Spanish Fleets, and he speaks highly of preserving wreck sites for others to enjoy

even after the salvage of the artifacts has been completed. He states that to damage

the sites deprives others of the chance to experience history underwater.12

12Ibid. 3.


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In the history of shipwrecks, there are many nations, such as Africa, France,

England, Spain, Mxico and South America to name a few. The shipping lanes ran fromthe West Indies to the coasts of South America to Canada and back to Europe. 13

13Keith Huntress.Narratives of Shipwrecks and Disasters:1586-1860. (Ames. The Iowa State University

Press. 1974.)


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CHAPTER 2: LITERATURE REVIEW

The research for this thesis covers the history of shipwrecks, treasure salvageand ownership of said riches. This thesis explores what differentiates pirate shipwrecks,

merchant ships and those claimed to be warships by sovereign countries. This also

discusses changing laws of Admiralty and maritime courts and how these laws can be

swayed by variables. This also deliberates the costs associated with salvaging treasure

and any Museum's expenses of gathering collections and the impact of Admiralty

rulings that return arts and artifacts.

Early references to maritime trafficking are apparent even in the early kingdoms

of Egypt and all along the Silk Road. According to Gardner's Art through the Ages,

Romans from the second century BC knew of silks from China and sought the luxurious

fabrics for their own. Rome was extremely instrumental in sea travel especially in the

Mediterranean. Early documentation speaks of the protection of treasures and

merchandise using cylinder seals14which clearly marked the goods of the merchant

and usually represented a high ranking personage.

The cylinder seals were intricately embossed and small enough that there could

be no forgeries made of the seal in route to the next destination. This prevented the

merchants goods from being pilfered along the track. If the seals were damaged, it was

a clear indication that the merchandise had been tampered with.15

Early seafarers included Anglo-Saxons the Celts and the Vikings. The Vikings

were fierce pre-Christian traders and Pirates of the sea. They even discovered North

14Cylinder Seals or Mesopotamian Seals were commonly made of stone and strung on cord to be worn

around the neck or wrist. Their design was such that they were rolled over clay and there was a raised impression

left on the clay. Their purpose was to identify documents and protect storage jars and goods from unauthorized

opening.

15Kleiner, Fred S. Gardner's Art through the Ages: A Global History. 13th Edition.(New York City:

Wadsworth, 2008.) 1.


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America before Christopher Columbus ever got there. In both English and Nordic lore,

there are references to ships burials.16

These are the spoken of the classic poemBeowulf. Ships would be laden with treasure and sent out to the sea the dead Lord

upon it. At first one would think that Beowulf17was a mythical writing except when one

goes to an archaeological find, with the ship, which was located 1939 by archaeologists

in a burial mound at Suffolk, England, at the edge of the sea. This mound known as

Sutton Hoo, is located in a group of Anglo-Saxon burial mounds.18This ship is

described in Beowulf. The poemwas written in the 1100s during the mediaeval period.

Dating has put the original script possibly as far back as 700. The original text was in

Saxon, and there are possibly two authors.19

Maritime law reaches back as far as the Roman Empire, as it stood at the time.

Frank L. Marists bookAdmiralty in a Nutshell touches on the summation of the Rules of

Olron, a set of maritime laws that are approximately 1000 years old and were

established by the Romans and used in the Mediterranean. The Rolls of Olronremain

from the time of the crusades and are the first known maritime and admiralty laws in

Europe.20Around 1160, Eleanor of Aquitaine brought the laws with her, back to

16Ibid. 2.

17Beowulftakes place in 6th century Denmark and Sweden. The Geats (Beowulf's tribe) inhabited the

southern part of Sweden) and Hrothgar and his glorious mead-hall Heorot were from the Danish island, Sjaelland.

Some historical digressions in the epic poem take place in other parts of Sweden, but also Denmark, Germany,

Poland and "the Low Countries."http://csis.pace.edu/grendel/projf20004d/History.html

18http://www.suttonhoo.org The Sutton Hoo Society, a registered charity, was established to support the work ofthe Sutton Hoo Research Project, which undertook an archaeological excavation and research programbetween1983 and 1992. Today, the Society has an extensive training program for Sutton Hoo Society Guides who offerburial site tours and Exhibition Talks, and works alongside the National Trust to promote interest in the site andAnglo-Saxon archaeology and history.

19http://csis.pace.edu/grendel/projf20004d/History.html

20Benedict on Admiralty, Matthew Bender & Co. v1, Ch II, 26


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England, after her return from the second crusade, accompanied by her first husband

King Louis VII. She spread the laws into England at the very end of the twelfth centuryhaving been granted vice regal powers of England, by her son, King Richard I, while he

was away on a third crusade. The laws were based upon the ancient Lex Rhodia21,

which had directed Mediterranean trade since before the time of Christ. Eleanor

became acquainted with them while at the court of King Baldwin III of Jerusalem, who

had adopted them, as the Maritime Assizes of the Kingdom of Jerusalem. 22

Article XXXII of the Roles of Olron state that if by reason of tempestuous

weather, it be thought advantageous, for the lightening of any ship or vessel at sea, or

riding at anchor, to cast part of the lading overboard, and it be done accordingly for the

common safety, though the goods ejected, and cast overboard, do become his that can

first possess himself thereof, and carry them away: nevertheless, it is here to be further

understood, that this holds true only in such cases, as when the master, merchant, and

mariners have so ejected or cast out the said goods, as that they give over all hope or

desire of ever recovering them again, and so leave them as things utterly lost and given

over by them, without ever making any enquiry or pursuit after them: in which case only

the first occupant becomes the lawful proprietor thereof.23

21Lex Rhodia de jactuoriginated from the Greek island of Rhodes. By 100 ADLex Rhodiaaddressed the

five most important matters concerning maritime trade and drafted detailed regulations regarding each.

http://www.mgmus.com/maximize5.25.05.html

22 Europe since the rise of the Italian Republics at the close of the ninth century; for its

(insurances) provisions are not found, as we have seen, in the Roman laws, nor are they in those reflections of

the Code, the Consolata del Mare, or the Laws of Oleron. No proof of the existence of the system is afforded even

in the earlier period of the Middle Ages. Yet in the Codes which remain from the time of the Crusades the laws

are sufficiently minute and decisive. Manley Hopkins.A Manual of Marine Insurance. (London. Smith, Elder &

Co.1897.)

23http://www.admiraltylawguide.com/documents/oleron.html


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The laws were published in French and English. King Henry VIII published them

as "The judgment of the sea, of Masters, of Mariners, and Merchants, and all theirdoings." The Rolls significantly influenced the English Black Book of the Admiralty. 24

These laws were then again adapted for American Shipping laws. This scholarly

book also covers international conventions on salvage, abandoned shipwrecks salvage,

the Salvage convention of 1910. These are all relevant points in the research for this

thesis, especially on salvaged art and antiquities. The author, Frank Marist has stated

the basic principle of salvage as follows: "One who voluntarily rescues maritime

property, which is derelict, or in peril is entitled to an award commensurate with the

value of the property, the risk involved and the effort expended. The award is

determined by the court."

Maritime and Admiralty laws govern a large seafaring section of activities. It is a

distinct branch of federal law with both decisional and statutory sources.

Decisional, or "general," maritime law is drawn from the maritime law of nations, which

the federal courts have accepted and adopted under the maritime jurisdiction conferred

by article 111.25The U.S. Constitution article III, 2 provides, "[the judicial Power shall

extend ... to all Cases of admiralty and maritime Jurisdiction." The Judiciary Act of

1789, granted "exclusive" federal jurisdiction over maritime cases but qualified the

grant by "saving to suitors, in all cases, the right of a common law remedy, where the

common law is competent to give it."26This law is in effect still in the modern maritime

24Keevil, John JoyceMedicine and the Navy,1200-1900,vol.1: 1200-1649. Livingstone. 1957.

25Farrel v. United States, 336 U.S. 511, 517 (1949); The Western Maid, 257 U.S. 419, 432 (1922); The

Lottawanna, 88 U.S. (21 Wall.) 558, 572-77 (1874) (drawing analogy between adoption of maritime and common

law).

26Powell v. Offshore Navigation, Inc.: Jurisdiction over Maritime Claims and the Right to Trial by

Jury. Barbara Bennett Woodhouse. Reviewed work(s): Source: Columbia Law Review, Vol. 82, No. 4 (May,

1982), pp. 784-810


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courts whenever there is a dispute over ownership of a wrecked vessel and its cargo or

the maritime location of the occurrence.Traditionally, the general maritime laws ofsalvage and finds have governed the treatment of shipwrecks.

2.1 Salvage Convention of 1910

Salvage, the provision of a financial reward for the rescue of property from

maritime peril dates back to Roman times. During the 20th century much of the law of

salvage was governed by the Salvage Convention of 1910 to which the United States

was a party. That convention generally restated American salvage law, however, and

several of its provisions were found in the salvage act. As a result convention rarely was

cited in American courts. The United States ratified the 1989 International Convention

on salvage which became effective in 1996. The Convention parallels American

maritime law and many essential particulars in addition the convention is limited in its

application relegating many matters to local control by state members and excepting

certain property from its reach. 27

2.1.1 Abandoned Shipwreck Act of 1987

In 1987, Congress approved the passage of the Abandoned Shipwreck Act of

1987 (ASA). On April 28, 1988, President Ronald Reagan signed the bill into law.

Exercising its power to fix and determine the maritime law which shall prevail

throughout the country, Congress stated that shipwrecks subject to the ASA are no

longer governed by the laws of salvage or finds. Through the ASA, the United States

asserts title to certain shipwrecks. Title to those shipwrecks is simultaneously

transferred to the state in or on whose submerged lands the shipwreck is located.

27Frank L Maraist.Admiralty in a Nutshell 6th edition. (St. Paul. West Publishing Co.. 2010)


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By definition from the Abandoned Shipwreck Act of 1987, a shipwreck is a vessel

or wreck and its contents. The vessel or wreck may be intact or broken into pieces. Thismeans the vessel can be scattered upon, or buried in, sand or coral formations. The

wreck includes, but is not limited to, the hull, armament, apparel, cargo and other

contents. Isolated artifacts scattered about, not associated with the vessel, whether

imbedded or not, do not fit the true definition of a shipwreck.

An abandoned shipwreck is defined as a vessel that has been sunk, and the title

has been voluntarily surrendered and no intention is present to attempt the salvage of

the vessel. If the owner of the vessel does not give indication of intent to salvage, then it

is assumed by the United States Coast Guard and the U.S. Army Corps of Engineers

that title has been given up on the vessel. These particular vessels are considered

abandoned within 30 days of the sinking if no active attempt is made to recover them.

If the title is paid for and the owner of the vessel transfers it to the salvor, then it

is no longer considered an abandoned shipwreck. In cases of ships of sovereign

nations, when a vessel sinks, the vessel remains the property of the flag nation. The

cargo and vessel are not considered abandoned unless the country actively files to

release its claim on the ship or to sell the title to a salvor.

If the cargo on board the ship has been gained unlawfully then the claim to

ownership cannot be allowed. The ships that fall under these sovereignty guidelines are

the WWII military ships, German U-Boats, U.S. Naval Battleships, Confederate

Gunboats and Union Ironclads from the Civil War, British Frigates and Colonial

Privateers from the Revolutionary war.28

28http://www.unesco.org/culture/natlaws/media/pdf/usa/usa_shipwreckact_guidelines_enorof.pdf


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Rhode Island has also found it to be in its interest to govern the treatment of

certain shipwrecks located in its waters. Since 1974, the state has governed theseshipwrecks through the Antiquities Act of Rhode Island (Antiquities Act). 29

2.1.2 Finds

Finds has been applied in some cases of treasure salvage, eliminating the

former owner and generating an ownership battle between the finder and the sovereign.

If the owner disclaims ownership, or the property has been abandoned at sea for a long

period of time it may be unreasonable to allow the owner to assert a claim in opposition

to the salvor. Under such circumstances, maritime law may classify the property as

foundnot salvaged, and under the doctrine of findsmay reward the rescuer with

ownership of the property rather than the lesser work for salvage. There appears to be

no clear line of demarcation between properties that are salvagedand a property that is

a find. Courts generally favor salvage over finds, which eliminates previous owners

claim to all property. Federal sovereign has asserted title to all abandoned shipwrecks

which are embedded, meaning firmly affixed in the water and sediment and the use of

tools of excavation are required to remove the shipwreck, within American waters, and

has transferred each to the state, title so that the abandoned shipwrecks located within

the state become property of that state. The Abandoned Shipwreck Act of 1987

provides that the law of salvage and the law of finds do not apply to abandoned

shipwrecks in its coverage.

Remarkable issues arise when the state desires to establish ownership of the

shipwreck under the Abandoned Shipwreck Act, and the finder wants to shield the state

and others from the location of the wreck until key issues can be resolved.

29HAS THE ANTIQUITIES ACT GONE DOWN WITH THE SHIP? A PREEMPTION ANALYSIS OF

RHODE ISLAND'S SHIPWRECK LAWS by Michael J. Daly


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2.1.3 Prize

Prizeis a sovereign's capture at Sea of a vessel or other property of an enemybelligerent during the time of war. The capture takes the vessel to a prize court, where

the issue of prize or no prize adjudicated in an in remproceeding. If the decision is

prizethe vessel is sold , and the proceeds are paid to the captor. Prize has not played a

significant role in American Admiralty law in the 20th and 21st centuries.30

2.2 Early Salvage Attempts

The earliest recorded shipwrecks can be located in the Archives of the Indies in

Seville, Spain. There are records there that speak of the hurricane in 1641 that

decimated the Spanish fleet that traveled with the Nuestra Seora de la Atocha.The

records state that the treasure that theAtochacarried was one of the richest that Spain

had set upon the oceans. There was actually a salvage attempted on the Nuestra

Seora de la Atocha. That same year, the Spanish Marquis of Cadreita commissioned

Gaspar de Vargas, a veteran seaman, to find the wreckage and recover the gold and

silver that she held. There were reports that the mizzenmast of theAtochawas visible

above the waterline at the Key of Matecumbe. Vargas and a man named Lopez set

about locating the wreck for salvage. First attempts were unsuccessful, as the divers

could not penetrate the sealed hatches and cargo doors of theAtocha. The men sailed

away to locate another of the lost fleet that was run aground. Some months passed

while they salvaged the other wreck. They then returned to the last known location of

theAtocha.31

30Frank L Maraist.Admiralty in a Nutshell 6th edition. (St. Paul. West Publishing Co.. 2010)

31R. Duncan Mathewson III, Treasureof the Atocha: A Four Hundred Million Dollar Archaeological

Adventure. (New York. Pisces Books. 1986).3.


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Pearl divers, the Lucayan Indians, were brought along, since they were

physically powerful and they could hold their breath for extended periods of time. Therewas even a primitive diving bell put into operation. The salvage attempts were futile for

the most part. Some of the divers worked to exhaustion and even death. The winter was

coming in, and the water was cold, and the diving bell did little for fresh oxygen. The

Spaniards never relocated theAtochaonly her sister ship, the Margarita.32They were

only able to locate and recover approximately half of the treasure that the Margaritahad

carried. Most of the silver and gold was melted at the site on the beach and reminted

into coinage for transfer back to Spain. The treasure was meant to finance the Thirty

Year Wars. Spain took a financial hit, and they were forced to seek funding and borrow

money from other countries.33

Coming into the contemporary time of the 17thand 18thcenturies, we find that

fleets of the Spanish Armada were anxious to explore the world, sending out fantastic

ships for exploration and battling England for control of the high seas. There are several

works of literature and scholarly texts written about this, such as James Lewis's book

The Spanish Convoy of 1750: Heavens Hammer and International Diplomacy. This

book discusses Spains overreaching grasp in the ocean with trade all the way to the

equatorial lines, West Indies, Canary Islands and just about any place that had a port of

trade. Mr. Lewis talks about the war ship La Galgaand the issues surrounding the

salvage of the ships goods. Of the Spanish convoy that Mr. Lewis writes that there

were seven ships in the flotilla. Two of the ships are of specific interest to this

researcher. There was the ship, LaGalga (the Greyhound), and her sister ship the

Mercedes.The Galgasank in a hurricane off the coast of colonial Maryland and

32Ibid. 4.

33Ibid. 5.


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Virginias border, on September 6, 1750 while the Mercedesescaped the wrath of that

particular storm.34

Fifty four years later, the Nuestra Seora de las Mercedes (OurLady of Mercy), the Spanish frigate, would sink by British attack, off the south coast of

Portugal on 5 October 1804 during the Battle of Cape Santa Maria, and would be at the

forefront of a legal battle with Spain.

The childrens story Misty of Chincoteague, written by Marguerite Henry, in 1947

loosely refers to the Galgassinking off of Virginia as a source of the ponies that are

part of the Assateague islands.35Salvage attempts on the Galgawere started by

Richard L. Cook of the Alpha Quest Corporation and then the Sea Hunt Corporation

owned by Ben Benson, came in and began the search and salvage process in 1996.

Mr. Benson was a self-made millionaire and he had the clout to take over and arrange

for all the red tape to begin to disappear.36During this time, Mr. Benson had arranged

for the salvage by obtaining permission from the Army Corps of Engineers and the

Virginia Marine Resources Commission, beginning the salvage in 1996. He was about

ready to uncover the Galga when the National Park Services of Virginia decided they

had issues with the salvage, even if the Army Corps of Engineers did not.37

There was another ship in the vicinity of the Galga, the Juno. It foundered in

1802 and now both wrecks sat on the bottom less than a half mile from the Assateague

Islands National Park. The Maritime Archaeological and Historical Society of

34James A. Lewis. The Spanish Convoy of 1750: Heavens Hammer and International Diplomacy.

(Gainesville. University of Florida Press.2009). 6.

35Ibid. 7.

36Ibid. 8.

37Ibid. 9.


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The reason the Norfolk courts were chosen is their acquired knowledge and expertise of

maritime and admiralty laws over the past decades of the 20

th

century in dealing withcases and legal issues connected to the Titanic, Lusitania, Central America and other

famed maritime discoveries.42

The resulting awards eventually turned to the favor of Spain under the 1902

Treaty of Friendship and General Relationships between Spain and the United States.

Sea Hunt was prevented from salvaging the wreck(s) anymore, and ownership of the

wrecks was awarded to Spain.

There are several other well-known ships from Spanish Armadas, one being the

Atochawhich was discovered in 1982 by Mel Fisher. A battle ensued for ownership

between the state of Florida, and Mel Fisher over the rightful ownership of the salvaged

wreckage treasures. Florida laid claim to the 17thcentury galleon, stating that the

Florida statutes automatically made the find the property of the state. Arrest warrants

were issued, and Mel Fisher was forced into a contract with the state that allowed the

state to pay the treasure salvor only 75% of the treasures value. Mel Fisher filed a

countersuit. In an unusual move by the government, on March 17, 1975, in an

environmental dispute which actually had no bearing on the Nuestra Senora de la

ordered an arrest of the shipwrecks, appointing Sea Hunt the exclusive salvor. Spain filed a verified claim asserting

ownership over the shipwrecks. The district court found that Spain retained title to JUNO, but had expressly

abandoned LA GALGA in the 1763 Definitive Treaty of Peace. See Sea Hunt, Inc. v. Unidentified, Shipwrecked

Vessel or Vessels, 47 F. Supp. 2d 678 (E.D. Va. 1999). The district court also denied Sea Hunt a salvage award.

As sovereign vessels of Spain, LA GALGA and JUNO are covered by the 1902 Treaty of Friendship andGeneral Relations between the United States and Spain. The reciprocal immunities established by this treaty are

essential to protecting United States shipwrecks and military gravesites. Under the terms of this treaty, Spanish

vessels, like those belonging to the United States, may only be abandoned by express acts. Sea Hunt cannot show by

clear and convincing evidence that the Kingdom of Spain has expressly abandoned these ships in either the 1763

Treaty or the 1819 Treaty of Amity, Settlement and Limits, which ended the War of 1812. We therefore reverse the

judgment of the district court with regard to LA GALGA, and affirm the judgment of the district court concerning

JUNO and the denial of a salvage award.

42Ibid. 13.


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Atochasituation, the United States Supreme Court ruled that the boundary between the

Atlantic Ocean and Gulf of Mexico was incorrect, and changed the line. This actionrelocated the wreck site to 14.4 km offshore in the Atlantic, or 9.6 km outside Florida's

jurisdiction.43This action by the government and16 years of fighting with the

government of Florida resulted in Mel Fisher being awarded the entire treasure. The

book Treasure of Atocha: A Four Hundred Million Dollar Archaeological Adventure

discusses the court battle as well as the original discovery. According to documentation

since the recent discovery of the Black Swanby Odyssey Marine exploration, Mel

Fisher's group states there should be no repercussions on their original lawsuit that

involved Spain.

There are issues with international and national laws and the impact on

archaeological and treasure salvage finds. Some of this is discussed by Paul Forsythe

Johnston, in his article, "Treasure Salvage, Archaeological Ethics and Maritime

Museums."in The International Journal of Nautical Archaeology. In another

archaeological argument, Wilburn A. Cockrell, an archaeologist for the state of Florida,

wrote a paper, The Trouble with Treasure: A Preservationist View of the Controversy. In

the paper, treasure hunters are akin to the archaeologist Schliemann, who annihilated

the ruins of Troy in his search for gold. Cockrells argument is that the professional

treasure hunters who stumble across a shipwreck tell the archaeologists that they would

not have been able to locate the wreck if not for them. He also states that the

shipwrecks are essentially time capsules sealed under the water and the treasure salvor

comes in and destroys the site in their search for wealth and fame. Mr. Cockrell states,

that out of Floridas documented 5000 shipwrecks, only a few hundred qualify as

43The Trouble with Treasure: A Preservationist View of the Controversy,Wilburn A. Cockrell, 1980


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treasure wrecks. He states that pirates and early salvage attempts by the sovereign

nations would have eliminated a lot of the potential for treasure. Most of the situation hesays is brought on by the hype of the news media.

Coming forward into the 21st century, we have the battle for the ship simply

known as the Black Swan. The Odyssey Marine Exploration, Inc. Group salvaged this

ship in open, international waters and brought the treasures back to the states. Spain

sought to take the treasure back claiming it was theirs. Peru stepped in to state that the

treasure never made it to Spain, so the gold technically belonged to them. Several

papers have been written, such as a legal brief by the Professor and attorney, Kim

Alderman from the University of Wisconsin Law School, entitled High Seas Shipwreck

Pits Treasure Hunters against a Sovereign Nation: The Black Swan Case." In this brief

Ms. Alderman talks about the issues of the sovereign rules and the treasure and who it

belongs to. Her argument is that the treasure from the Mercedeshas not been proven

beyond a doubt that the treasure even came from that ship. There are several issues

that seem to negate the fact that the treasure was found on the Nuestra Senora de las

Mercedes. This aspect of the fact-intensive litigation was critical to Odysseys argument

because if the coins recovered were indeed privately owned, then the natural

conclusion might be that Spain would have no interest in the coins, perhaps only in the

remains of the ship. In this case, however, no vessel was ever located or recovered.

Odyssey distinguished it was the Mercedesfrom the recovered coins, arguing

that even if the ship itself conveyed sovereignty under the maritime laws, sovereignty

would not apply to the private cargo carried by the Mercedes. The District Court,

however, explained in their order granting Spains motion to dismiss that the ship and

the cargo are indistinguishable for the purposes of the Foreign Sovereign Immunities


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Act.44Several other maritime lawyers, such as R. Sebastian Gibson "California Art

Attorney, Maritime Shipwreck Lawyer And International Antiquities Attorney AnalyzesOwnership Of Shipwrecks, Stolen Art And Antiquities and extensive news media

coverage have all added to the legal issues involved in the recovery of salvage

treasures and who has rightful ownership. Under the laws of sovereignty, a country can

say that a ship was never abandoned even though it is over 300 years old. In this

particular domain, it becomes an issue of is it political or monetary?

2.3 Captain Sam Bellamy and his Pirate Ship Wydah

Three scholarly texts cover the saga of the New England Pirate Samuel

Bellamy and his ship the Wydah. This shows another facet of the history of maritime

profession and brings in the acts of piracy into the merchant shipping trade. The book

Pirates! An A-Z Encyclopedia: Brigands, Buccaneers, and Privateers in Fact, Fiction,

and Legend, written by Dr. Jan Rogoziski, gives a well-documented biography of the

ill-fated pirate. In 1716, Bellamy sailed as a pirate under Benjamin Hornigold. Hornigold

eventually left because he refused to loot British vessels. The crew elected Bellamy

Captain, and they captured several vessels near the Virgin Islands. While cruising

between Haiti and Cuba, the pirates captured the slave ship Wydahthat was returning

to London with gold, ivory, sugar and indigo45. Bellamy began the return voyage

towards Virginia. On the trip north, four more ships were pillaged as they made for

Rhode Island. During the night of May 17, 1717, the Wydahwas wrecked in a heavy fog

44This is from an interview with Ms. Kimberly Alderman and Ms. Alders brief on the status of the

Odyssey Marine Exploration and the Black Swan Case.High Seas Shipwreck Pits Treasure Hunters Against a

Sovereign Nation: The Black Swan Case

45Indigo-A tropical plant (genus Indigofera) of the pea family, which was formerly widely cultivated as a

source of dark blue dye. www.merriam-webster.com/dictionary/indigo


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when the ship slammed into a sandbar three miles South of Wellfleet, Massachusetts,

and Bellamys home. Two of the 146 men aboard reached safety and were captured.Bellamy was killed in the wreck. The nine seamen who reached the shore were tried in

Boston for piracy and seven were hanged.

Attempts to salvage the Wydahscargo after the tragedy, (reportedly worth

20,000 British pounds at the time), were hampered by foul weather conditions and the

wreckage of the ship being spread four miles along the coastline. 46

The book, Expedtion Wydah: The Story of the Worlds First Excavation of a

Pirate Treasure Ship and the Man Who Found Her is a first-hand account of the wreck

of the Wydahand the life of Samuel Bellamy, written by Barry Clifford who located the

elusive shipwreck. In 1983, Barry Clifford began his search for the Wydah. As the

salvage attempt was underway they located part of the hull of the ship. Drawings were

made of the hull and shown to an archaeologist of the Smithsonian Institute. The

archaeologist said that the ship's drawings could not possibly be from an 18th century

ship. There was a dispute over metal banding. This was later disproven. The media

were interested in the ship find so Barry Clifford continued to search and talk to the

media. According to the National Historic Preservation Act, Section 10647requires that

salvage crews have an on-site archaeologist at all times during excavation. The team

archaeologist quit. When this occurred salvage operations were shut down by the

Massachusetts Board of Underwater Archaeological Resources48.

46Jan Rogoziski. Pirates! An A-Z Encyclopedia: Brigands, Bucanneers, and Privateers in Fact, Fiction,

and Legend.(New York. De Capo Press. 1996)

47Advisory Council on Historic Preservation. http://www.achp.gov/106summary.html

48Established in 1973, the Massachusetts Board of Underwater Archaeological Resources (BUAR) is the

sole trustee of the Commonwealth's underwater cultural heritage. The nine-member state Board is a statutory

program of the Executive Office of Energy and Environmental Affairs. BUAR has been administratively hosted by

Massachusetts Office of Coastal Zone Management (CZM) since 1986.

http://www.mass.gov/czm/buar/overview.htm


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An archaeologist was eventually put in place, and the salvers returned to work.

John F. Kennedy Junior, son of the late president John F. Kennedy was first mate ofClifford's ship, Vast Explorer,that summer. Veteran treasure salvor Mel Fisher was also

a consultant on the expedition. In November 1983 Barry Clifford was taken to court in

Boston. The courts upheld the validity of the 1973 Underwater Archaeological

Resources Act49approving claim of Massachusetts to one fourth of the treasure which

was salvaged from the Wydah.

In the book, Treasure Wreck: The Fortunes and Fate of the Pirate Ship Wydah,

Arthur T. VanderbiltIIcovers the story of the life and times of Samuel Bellamy, his ill-

fated love of Maria Hallet and the ship that would bring him ultimately to ruin. The text

covers documents of the court hearing for the seven men that were hanged for piracy in

1717 as well as a thorough documentation of the salvage venture by Barry Clifford for

the Wydah.The texts cover the artifacts that are brought up from cannons to a leather

shoe with the imprint of the wearers foot there even after 267 years in the ocean

depths.

The books also discuss the ramifications of salvage work and the impact that

they have on archaeological sites. These books discuss the laws and the court

proceedings that allow or disallow the salvage process and the extent of the direct

49Under Massachusetts General Law Chapter 6, sections 179-180, and Chapter 91, section 63, BUAR is

charged with encouraging the discovery and reporting, as well as the preservation and protection, of underwater

archaeological resources. Generally, those resources are defined as abandoned property, artifacts, treasure troves,

and shipwrecks that have remained unclaimed for over 100 years, or exceed a value of $5,000, or are judged by theBoard to be of historical value. The Commonwealth holds title to these resources and retains regulatory authority

over their use. The Board's jurisdiction extends over the inland and coastal waters of the state.

No person may remove, displace, damage, or destroy any underwater archaeological resource except in

conformity with permits issued by the Board. To deal with certain types of artifact discoveries, the Board's

regulations provide an exemption from the permit process for isolated finds and exempted sites.

http://www.mass.gov/czm/buar/overview.htm


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impact of the local government to control the preservation of shipwreck sites and the

artifacts on those sites.


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CHAPTER 3: RESEARCH METHODOLOGY

The purpose of this study is to answer that primary research question: Why aresalvaged art and antiquities at the mercy of maritime laws? Although this research has

utilized both quantitative and qualitative methods, the principal method adapted has

been mixed methodology research, through interviews, data collection and scholarly

texts. The researcher used a narrative approach to this thesis, and the research

question has been identified and determined that it is in a historical category. This

researcher believes that to have an understanding of the issues of maritime and

admiralty laws surrounding the debate over ownership of wrecks, and the salvaged arts

and antiquities from them and standing practices regarding cultural property and arts

collections, are crucial aspects in understanding where the issues lie within the arts

administration field.

This researcher approached several salvor businesses and museums and

interviewed the company CEOs, legal department personnel, marketing personnel, and

directors of exhibits. The researcher also selected and referenced several cases that

were high profile in the world of shipwrecks and salvaged arts and antiquities. This

author did research on the companies and personnel in each, looking for the most

knowledgeable for the research questions.

3.1 Qualitative and Theoretical Perspectives Methods

Upon reading scholarly texts, the author of this thesis located information in the

bookApplications of Case Study Researchby Dr. Robert Yin, which states that the case

study method embraces the full set of procedures to do a case study work. Dr. Yin

discusses the benefits of developing a theoretical perspective in conjunction with design

and analysis tasks. He also states the importance of triangulating among the data

sources. In his writing, he states that all case studies research start from the same


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compelling feature: the desire to derive an up close in depth understanding of a single

or a small number of cases set in their real world contexts. Dr. Yin also says that onecan apply a case study to common, everyday phenomenon or to some outstanding

event and the author will be able to successfully achieve an outcome.

Dr. Yin also suggests using initial theoretical perspective and in general the less

experience one has in doing case study research, the more the researcher may want to

adopt theoretical perspectives. Multiple case studies allowed this researcher to

triangulate the data for an outcome of hypothesis.

These processes allow the author of this thesis to collect data, both quantitative

and qualitative, and maintain an open end process for gathering further information and

data. The researcher attempts to show data that addresses and investigates

phenomenon as richly descriptive and provides opportunities for further research in the

field of arts administration dealing with salvaged art and antiquities.

In his book,Applications of Case Study Research, Dr. Yin also speaks of six

common sources of evidence in doing case studies. He advises direct observation,

interviews, archival records, documents, participant observation and physical artifacts.

The author of this thesis has applied this principle of case study using two separate

companies that salvage shipwrecks for art and antiquities. There is a third interview

done with the Maryland Science Center which helps to eliminate the possibility of a null

analysis.50

50Robert K. Yin. Case Study Research: Design and Methods.Volume 5 of Applied Social Research

Methods Series.(Thousand Oaks. Sage Publications. 2008)
http://www.google.com/search?tbo=p&tbm=bks&q=bibliogroup:%22Applied+Social+Research+Methods+Series%22&source=gbs_metadata_r&cad=8http://www.google.com/search?tbo=p&tbm=bks&q=bibliogroup:%22Applied+Social+Research+Methods+Series%22&source=gbs_metadata_r&cad=8http://www.google.com/search?tbo=p&tbm=bks&q=bibliogroup:%22Applied+Social+Research+Methods+Series%22&source=gbs_metadata_r&cad=8http://www.google.com/search?tbo=p&tbm=bks&q=bibliogroup:%22Applied+Social+Research+Methods+Series%22&source=gbs_metadata_r&cad=8


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3.2 Mult i-Method Research

In the multimethod research procedure, both qualitative and quantitative methods

can be used in any research paradigm. Qualitative research tends to use direct open-

ended questions to participants. Surveys include sectional and longitudinal studies

usage structure. The researcher of this thesis employed the qualitative research to

gather as much information as was possible in the interviews with the subjects.

In John Cresswells book Research Design: Qualitative, Quantitive and Mixed

Method Approacheshe states that to include only quantitative and qualitative

methods falls short of the principal approaches being used today in the social and

human sciences. Other philosophical assumptions beyond those advanced in 1994

have been widely discussed in the literature. Most notably, critical perspectives,

advocacy/participatory perspectives, and pragmatic ideas (e.g., Tashakkori and

Taddile,1998) is being extensively discussed. Although philosophical ideas remain

largely hidden in research they still influence the practice of research and need to be

identified.

Creswell states that brought assumptions can be brought into a narrow focus

using the question model such as:

1. What knowledge claims are being made by the researcher (including a

theoretical perspective)?

2. What strategies of inquiry will inform the procedures?

3. What methods of data collection and analysis will be used?

Meanings are constructed by human beings as they engage with the world they

are interpreting. Qualitative researchers tend to use open-ended questions so that

participants can express their views. 51

51John Creswell discusses the processes for the model questions in his book Research Design:

Qualitative, Quantitive and Mixed-Methods Approaches 2nd Ed.


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The author of this thesis uses a series of open-ended questions to gather data

from Mel Fishers Treasures, Odyssey Marine Exploration,Mel Fishers HeritageSociety, and the Maryland Science Center. The data collected from these questions has

been compared and analyzed for convergence of information.

Creswell also states in his book, Research Design: Qualitative, Quantitive and

Mixed-Methods Approaches 2nd Ed. In which the quantitive approach uses post

positive causes for developing knowledge, and collecting data that yield statistics. A

qualitative approach based on constructivist perspectives and again mixed method

approach what is being used by the writer of this thesis. The researcher chose the

mixed method approach using pragmatic knowledge and collecting both types of data at

the same time. The study started with a broad survey to generalize results and used

open-ended interviews to collect data to use toward case studies.

The author of this thesis in research and investigation and through a theoretical

lens has narrowed the focus to the lack of laws in place to govern the repatriation of

salvaged art and antiquities. The authors research has uncovered gaps in the legal

system concerning issues of repatriation of art and antiquities salvaged from

shipwrecks.

The case studies allowed the researcher to demonstrate hypothesis and study

historical events leading up to modern-day rulings in courts that have a potential to

impact the arts administration field. This study tested a central theory of two cases that

employed the historical phenomenon of salvaged art antiquities and how it affects the

arts administration field. This can also be seen from a societal phenomenon, as some

sovereign countries are seeking to pursue criminal charges of theft against salvors,

museums, and private collectors of salvaged of arts and antiquities.


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The societal phenomenon points also to suggestions for how arts administrators

can prevent illegal rulings from ravaging collections and museums are becoming victimsof the counterfeiters of treasures. There are examples of treasure being reproduced,

such as dates being filed off the newly minted artifacts, and the pieces being aged to

create replicas that rival the original. Fraudulent and counterfeited artifacts are an

imminent problem faced by the arts administration field.

The researcher chose to use mixed method research because it allowed a wider

field of study. The researcher used targeted interview questions to gather pertinent facts

and data. This specific exploration relied on interviews regarding the cases, archival and

pertinent documents and how they were tied into the study. This specific method has

drawbacks. When doing research, one comes across so much information that it is

time-consuming to sort data. Also, using the multiple research approach puts the author

at a disadvantage with timetables waiting for interviewees to respond and to arrange

further contact for the interviews. This actual research method can create a broad

definition, but with organization, they can be brought back into a manageable focus so

that the author stays on task.

To obtain primary sources, the researcher interviewed persons directly related to

the research cases. The interviews provided a primary source and first-person

perspective. The use of reports, journals and texts, were accessed during the research.

Maritime and Admiralty laws were consulted to reach decisions. Archival records such

as ships manifests were accessed through the national archives and the Archive of the

Indies, located in Seville, Spain.

Data interpretation was accomplished by the researcher after extensive

examination of the data. The researcher stayed with the central hypothesis to maintain


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the focus on the core issue of salvaged art and antiquities. The author of this thesis also

addresses the question, Is there a foreseeable end to this issue? If not, why?The researchers examination tends to point to the gap in the Admiralty law and

the seemingly non-concrete enforcement of the salvage laws. It would seem until that

particular law is addressed that elicit rulings could possibly continue to the detriment of

the arts administration field.


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CHAPTER 4:RESULTS AND DISCUSSION

The authors research has uncovered gaps in the legal system concerning issues

of repatriation of art and antiquities salvaged from shipwrecks. The salvage laws as set

forth in the Maritime courts tend to fall back on antiquated legislation as far back as the

laws have been recorded. In some cases, it has been suggested that the courts and the

claims are settled in the shadow of the courts out of the courtroom to avoid the battles.

In regard to interviews with Mel Fishers Treasures and Odyssey Marine Exploration, a

set of questions were asked of each company, both dealing with theAtochaand the

Black Swancase. The questions were remarkably similar in the form of case study on

the two wrecks. The case study for these two directly addressed one of the questions

from the research, Why are some salvaged shipwrecks and the arts and antiquities

found, protected, while others are returned to other countries; is it for political or

financial gain?

In each case, the shipwrecks differed in how they were affected by court rulings

of maritime and Admiralty courts. Regarding the case of the Nuestra Seora de la

Atocha, the United States and tried to take the ship and its treasures from Mel Fisher

stating that it was found in jurisdictional waters of the United States. The find occurred

in 1982, after 16 years of looking for the shipwreck. It took another eight years of court

battles to get the treasure awarded to Mel Fisher. Now, Mel Fishers Treasures goes

before an Admiralty court for adjudication each year, to show the treasures that they

have found, and await ruling to see if they will be awarded title to the new finds.


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In the incident of Odyssey Marine Exploration concerning the case of the Black

Swan, Spain alleged the ship was the Nuestra Seora de la Mercedes, an 18th century

war ship. The area in which the shipwreck was found was in a shipping area that had

numerous other wrecks on the ocean floor. There was no hull or identifying marks to

prove that this particular ship that the Odyssey Marine Exploration Team had found was

indeed the Nuestra Seora de la Mercedes. The case was heard eight different times in

maritime courts, and dismissed. Spain continued to pursue the issue, and brought it into

Admiralty court one more time. This time the ruling was in favor of Spain. The author's

research of the two cases, and the validity of the parties involved indicate that it was not

financially motivated but in high probability was politically driven. The difficulty with that

is that according to Admiralty laws and maritime guidelines the United States is not to

side with a foreign country against an American salver, so there are gray areas that

could in the future affect museums in their collections.

4.1 Safeguarding of Cultural Heritage

In 1970, the United Nations Educational, Scientific and Cultural Organization

(UNESCO) formed a convention that would protect artifacts and antiquities from being

plundered and removed from the country(s) of origin. In 1982-83, an experimental

project was undertaken to inventory and catalog arts and antiquities and then it followed

suit that the inventories and documentation eventually extended to include

archaeological digs and sites.


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In the case of Spain, a law was adopted in July 1985 that states that illegal

pillage and transport of cultural heritage artifacts and antiquities and retrieval of those

artifacts that have come into the hands of antiquities dealers from disreputable sources

would have to be returned.

A special unit has been set up to investigate offenses to the Spanish cultural

heritage. The law also provides fiscal amnesty for anyone who claimed their antiquities

prior to 1986. Trade in cultural objects is fair as long as guidelines are followed. These

include the petition for a license and approval to transfer the item out of the country. Any

artifact that is over 100 years old or is listed in the General Inventory of Moveable

property cannot be exported without express permission of the State Administration.

The State Administration can make a decree and prevent cultural heritage items

from being exported. The objects exported without the approval of the State

Administration are considered property of the state and are undisputable and cannot be

removed. The law divines that the cultural heritage pieces are protected and included in

the budget is a 1% fee to finance works for the conservation of Spanish cultural

heritage. Penalties are enacted when the laws are not obeyed.(UNESCO)

With the Cultural Property Implementation act, the United States came into the

UNESCO convention. This Law forbids the import of illegal art and cultural artifacts

especially those with a record of belonging to a museum or other institution, into the

country. It is the duty of the United States Customs Service to seize the stolen cultural

property and notify the country of origin via their embassy and arrange for the return of


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the items. The United States may impose sanctions on certain ethnological and

archaeological articles if a State party requests this in writing. 52

4.2 Salvage Impact on Archaeology and Culture

During several interviews and in secondary resources the issue of archaeology

and culture arose. There are many differing opinions on this aspect of the work with

shipwrecks and wreck sites and artifacts and treasures recovered from the wreck sites.

Many archaeologists advocate keeping the wreck sites intact and only allowing for thecataloguing and removal of artifacts by certified archaeological teams. In most cases of

wreck salvage, if the waters are territorial, as in the waters of the United States and off

of a specific coastline, the salvage company must get permission from the state to begin

work on the site. In these cases, the state archaeologists are called in, and they will

document and catalog the wreck and the site. That has been the case with several

ships located in waters near countries, such as Greece, the United States, and Spain.

In the 1970s UNESCO created a convention to prevent the looting and selling of

antiquities. The 1970 Convention requires its States Parties to take action in these main

fields: Preventive measures: Inventories, export certificates, monitoring trade,

imposition of penal or administrative sanctions, educational campaigns, etc.

Restitution provisions in Article 7 of the Convention, states parties undertake,

at the request of the State Party "of origin", to take appropriate steps to recover and

return any such cultural property imported after the entry into force of this Convention in

both States concerned, provided, however, that the requesting State shall pay just

52UNESCO established guidelines to return arts and antiquities to countries that had been rifled in the

wars.


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compensation to an innocent purchaser or to a person who has valid title to that

property. More indirectly and subject to domestic legislation, Article 13 of theConvention also provides provisions on restitution and cooperation.

International cooperation framework: The idea of strengthening cooperation

among and between States Parties is present throughout the Convention. In cases

where cultural patrimony is in jeopardy from pillage, Article 9 provides a possibility for

more specific undertakings such as a call for import and export controls. 53

These guidelines work well with established laws such as the Native American

Graves and Repatriation Act of 1990, which is a concrete law that establishes a

protection against the looting of Native American grave sites and archaeological digs.

4.3International Law Protecting Underwater Cultural Heritage

The Convention on the Protection of Underwater Cultural Heritage entered into

power in January 2, 2009. Adopted in 2001 by the United Nations Educational, Scientific

and Cultural Organizations (UNESCO) General Conference, the Convention represents

an international response to the increased looting and destruction of underwater cultural

heritage by treasure hunters.54

The Convention is based on four main principles:

The obligation to preserve underwater cultural heritage

53http://www.unesco.org/new/en/culture/themes/movable-heritage-and-museums/illicit-traffic-of-cultural-

property/1970-convention/

54ART & CULTURAL HERITAGE LAW NEWSLETTER. FALL 2008, VOL. I, ISSUE NO. IV


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in situ preservation policy and scientific rules for research & recovery

no commercial exploitation of this heritage

Co-operation among States to protect this heritage, particularly training,

education and outreach.

The Convention does not adjudicate ownership claims nor bias the jurisdiction or

sovereignty of States. The Conventions Annex establishes rules for activities directed

at underwater sites; these rules are widely recognized by archeologists. The twenty

States Parties include: Barbados, Bulgaria, Cambodia, Croatia, Cuba, Ecuador,

Lebanon, Libya, Lithuania, Mexico, Montenegro, Nigeria, Panama, Paraguay, Portugal,

Romania, Saint Lucia, Slovenia, Spain and Ukraine. The United States and a number of

other maritime nations have not yet signed the Convention due to reservations on

treatment of sunken warships in the territorial waters, and what is referred to as

creeping coastal state jurisdiction over underwater cultural heritage on and the EEZ or

Exclusive Economic Zone.55

In regard to underwater cultural heritage on the continental shelf and in the EEZ,

the United States, through the Department of State, in 2004 joined the United Kingdom

in signing an International Agreement for the Protection of the Titanic. It provides a

potential model for other agreements that fully addresses the United States concerns

about creeping coastal State jurisdiction consistent with the Law of the Sea

55US Naval War College.Military Activities in the EEZ: A US-China Dialogue on Security and

International Law in the Maritime Commons.(Newport. US Naval War College. 2010.)

http://www.usnwc.edu/Research---Gaming/China-Maritime-Studies-Institute/Publications/documents/China-

Maritime-Study-7_Military-Activities-in-the-.pdf


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Convention. The Annex to the Titanic Agreement is nearly identical to the Annex of

the UNESCO Underwater Cultural Heritage Convention.

4.4 Maryland Science Center

In an interview with Ms. Brenda Lewis56, the Exhibits Director at the Maryland

Science Center, the researcher was able to ask questions that addressed the research

question, How does the repatriation of salvaged arts and antiquities from shipwrecks

impact arts administration, museums (including maritime museums) and archaeological

concerns? Ms. Lewis discussed the issues of marine archaeology, Marine biology, and

the educational process that salvaged art and antiquities from shipwrecks essentially

afford both children and adults.

The researcher was able to gather information from Ms. Lewis that spoke to the

issues of archaeological issues, as well as preservation of wreck sites. Ms. Lewis stated

that the wreck information and artifacts that they had gotten from Odyssey Marine

Explorations not only showed the beauty of the treasure but that it also allowed the

Maryland Science Center to incorporate aspects of Marine biology and oceanography,

into the program, such as the impact of hurricanes on the armadas,as well as illustrate

the history of merchant ships and pirates. Exhibits like this also address sustainability

and conservation within the arts administration field. The Maryland Science Center had

the Exhibit for 4 months from October 2010 to January 2011. Ms. Lewis advised that the

56Ms. Brenda Lewis, the Director of Exhibits at the Maryland Science Center was interviewed via

telephone and email.


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court ruling against Odyssey Marine Exploration, in favor of Spain, had fortunately not

affected the exhibit at the time it was at the Science Center.

Ms. Lewis addressed another shipwreck that, although not a treasure ship, it was

famous in another way. The Exhibit was known as the Titanic Science, and in this the

hundredth year anniversary of the sinking of the Titanic; the museum addressed the fact

that repatriation of articles from the Titanic would be detrimental to the collection. The

Maryland Science Center used artifacts to create educational aspects of the shipwreck.

Staterooms were constructed, placards were made, and students as well as visitors

would collect a placard at the start of the tour.

Each placard either had the name of a survivor, or someone who did not live. For

each person, there was one card. The premise of the exhibit was to walk through and

view the staterooms, the artifacts and belongings that were brought from the Titanic,

including the demitasse tea sets from the dining hall that were used by the wealthy

patrons. At the end of the tour, there was a roll book. The participants would look at the

name of whom they had been, look up the name and find out if they had been one who

survived the wreck of the Titanic, or if they held the placard of someone who died.

Ms. Lewis stated that to set up the science Center exhibits required man-hours at

conferences arranged by the Association of American Museums. Marketing and any

acquisition of the exhibits required labor for installation and setup as well as tear downs.

She restated that any type of repatriation during an exhibit would be costly both to the

center itself and the potential loss of income generated by the exhibits.


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Ms. Lewis went on to tell the researcher of this thesis that to set up and tear

down a display and the cost for bringing in temporary exhibits to the Maryland Science

Center varies, depending of course of the exhibit itself, size, time taken to

install/takedown. Most exhibitors want to make money on leasing out temporary

exhibits. The Mary

Documents

Salvaged Art & Antiquities: At the Mercy of Maritime Law