Rand R. Pixa¹

My father, an Army officer who sailed aboard Navy and merchant ships chartered to the Federal Government during World War II, put it simply that ships belonging to the Government were a little piece of the United States and carried the rights of sovereign territory with them. At least that is as much as I can remember of his explanation of the subject to me when I was age ten or twelve. Of course, the strictures of international law are more sophisticated than that simple prescription, but the principles my father explained reflect the legal distinctions setting sovereign vessels apart from those privately owned or engaged in commercial service.

The thesis of this paper is that the investiture of sovereign rights in a ship changes its character as a result of that expression of sovereign intent and that it is the form of that intent thereafter that either clothes the ship with the incidents of sovereignty including perpetual sovereign title or removes or conditions the character of sovereignty, and that it is only the sovereign who can make that determination. It follows that sovereign rights, including all the rights of ownership, extend over sovereign property so long as the sovereign or its successor so intends. The consequence of that is that sunken sovereign ships should not be treated in the same manner as those that are privately owned in that the former are not subject to unintended abandonment, the law of finds, or unconsented salvage indefinitely after their loss because, unlike private ships, their sovereign owners or their successors carry on indefinitely.

From ancient times, the presence of an armed ship of a foreign sovereign in the waters of another state raised concern and would be tolerated only under limited circumstances. Such a ship might be driven into the territorial waters of another state by force majeure and would be considered innocent if it were to engage in no conduct inimical to the prerogatives of the sovereign whose waters were visited, leaving as reasonably soon as conditions permitted.² Or it could carry the ambassadors of one sovereign to another, therefore being cloaked in the historic privileges afforded to such emissaries so long as its mission was limited to the ambassadors' diplomacy. ³ And naturally the sovereign ship as the representative of a foreign sovereign could enter the waters of another state by invitation, restricted in its activities by the terms of the continuing forebearance of the visited state. Under any of the foregoing circumstances the innocence of the visiting ship was the prerequisite for its continuing presence within the territorial waters of the visited state. On the other hand, if the warship of a foreign sovereign entered another sovereign's territory for other than the aforementioned purposes, violated the conditions of an otherwise innocent visit, or overstayed its welcome, the violation could be considered an act of war. ⁴

Modern international law reflects the special status conferred on sovereign vessels. The United Nations Convention on the Law of the Sea (UNCLOS) handled the compromise between the unequivocal sovereignty of a warship and the rights of a coastal state by conditioning coastal sovereign rights through the right of innocent passage. ⁵ The right of innocent passage is limited and designed to ensure such passage is truly innocent. ⁶ UNCLOS Article 30 specifies the mechanism to remedy breach of specified innocence. "If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately." The modern remedy is fundamentally the same as that described by Grotius. ⁷ But "Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State." ⁸

It is on the body of international law which extends from Hugo Grotius in the seventeenth century to UNCLOS that the positions of leading maritime states regarding the perpetual ownership of their sovereign ships rests. The following is a recitation of some of those positions.

Respect for perpetual title and sovereign rights in sunken sovereign vessels is deeply embedded and broadly respected in international law. Take for example the Protocol Concerning Cooperation in Combating Pollution Emergencies in the South Pacific Region (Emergency Protocol) under consideration by South Pacific Regional Environmental Programme (SPREP) nations. ¹⁴ Supporting the Protocol is the SPREP "Regional Strategy to Address Marine Pollution from World War II Wrecks," ¹⁵ containing broad recognition of the applicable international law principles.

"Internationally, there is currently no multi-lateral legal instrument governing the ownership of sunken warships or military aircraft. However thee is a well-developed body of customary international law governing the treatment of sunken warships and military aircraft. "The Law of the Sea Convention, Articles 95-96 and also the 1958 High Seas Convention Articles 8-9, state that warships, naval auxiliaries, and other vessels owned and operated by a state and used at the time they sank only on government non-commercial service, are defined as "state vessels." International Law recognises that state vessels, and their associated cargoes, whether or not sunken, are entitled to sovereign immunity. "Precedents under international law indicate that there are only three ways through which ownership of a warship or state vessel can be transferred: if the vessel is captured or surrendered during battle (prior to sinking); by an international agreement; by an express act of abandonment, gift or sale in accordance with relevant principles of international law and the law of the Flag State governing the abandonment of government property. "Once hostilities have ceased, protagonists do not acquire any title to vessels through the act of sinking them. Likewise title to the vessel is not lost by the mere passage of time. "A Coastal State does not acquire ownership of a sunken state vessel by reason of its being located on, or embedded in, land or the seabed over which it exercises sovereignty or jurisdiction. However, access to such sunken state vessels within a Coastal State's archipelagic waters, territorial sea or contiguous zone, is subject to Coastal State control under international law. Access to sunken vessels beyond the limits stated in the preceding sentence is subject to Flag State control even though they may be still within a Coastal State's Exclusive Economic Zone. "Once hostilities have ceased, no person or State may salvage or attempt to salvage sunken state vessels, wherever located, without the express permission of the sovereign Flag State. Sunken state vessels that contain crew remains are entitled to special respect and must not be disturbed without the explicit permission of the Flag State. "It is clear from the above assessment of customary international law and also precedents under international law that any action that disturbs sunken state vessels can only be undertaken with the consent of their Flag States."

The position regarding perpetual sovereign title has also been taken by the United States consistently since at least the 1980s, as evidenced by a substantial body of case law and agreements with other nations respecting their rights to their sovereign wrecks.

Contemporary U.S. judicial history of the treatment of the sovereign wrecks of the United States begins with Hatteras, Inc. v. The U.S.S. HATTERAS,¹⁶ in which the claim of the salvor was denied. Hatteras, Inc., argued that the United States' neglect of the wreck for over one hundred years after its 1863 sinking amounted to abandonment. The Court stated "[I]t is well settled that title to property of the United States cannot be divested by negligence, delay, laches, mistake or unauthorized actions by subordinate officials[,]" explaining further that U.S. government property may only be disposed in the manner prescribed by Congress.

In U.S. v. Steinmetz,¹⁷ the so-called ALABAMA-bell case, the purchaser in due course of the bell was deprived of possession by the United States' superior right in title. By his account Richard Steinnetz, an antique dealer, acquired the bell at a London gun show in 1979; it had reportedly been recovered from the 1864 wreck of CSS ALABAMA in 1936 by a diver who placed it in a bar in trade for drinking privileges. The bell came to the attention of Navy officials in 1990 when Mr. Steinmetz put it up for auction. After Mr. Steinmetz refused to turn the bell over to the Navy, the Government filed an action against him for its return. The Court determined that the United States was the successor sovereign to the Confederacy and had acquired all right and title to the property of the Confederate States of America including the ALABAMA and the bell, finding that it had not been abandoned. ¹⁸

The next landmark case was that confirming ownership of the JUNO and of LaGALGA in the Kingdom of Spain. ¹⁹ The two ships were lost on the Virginia coast in 1750 and 1802 respectively and lay undisturbed until they were reportedly found by Sea Hunt, Inc., in the late 1990s. Sea Hunt claimed a salvage award against them or in the alternative asked the U.S. District Court for the Eastern District of Virginia to award title under the law of finds. Assuming the identity of the ships to be that claimed by Sea Hunt, the Court ruled that both were sovereign vessels, and that they had not been abandoned absent an express renunciation of ownership by the Kingdom of Spain. The Court further held that because Spain had expressly rejected salvage, Sea Hunt was not entitled to a salvage award.

The case of JUNO and LaGALGA is interesting also in two other respects. First, procedurally, the Court barred the U.S. Justice Department from representing Spain at that government's request pursuant to the 1902 Treaty of Friendship between the two countries. This case is included among expressions of U.S. Government policy as a consequence of the Government's interest and support throughout the proceedings, manifested through the rare move to represent a foreign sovereign. Second, the case represented the first time the Kingdom of Spain had asserted title to any wreck lost during the Spanish colonial period. Previously the government of Spain had been reluctant to do so, presumably as a result of the sensitivity of its former colonies and the frequent claim that the King's ships were the means of "looting" Latin America.

And most recently, the protracted litigation involving a World War II "Devastator" TBD-1 clarified the rights of the United States in the context of unwanted salvage. ²⁰ Notwithstanding the Navy's repeated, express rejection of salvage of a historic aircraft in 800 feet of water off Florida, the would-be salvor twice brought components of the aircraft into the District Court seeking to invoke the jurisdiction of the Court, seeking a salvage award and claiming that Government officials had induced the undertaking. It was finally determined on appeal that the United States remained the owner absent official, express renunciation of ownership, and upon remand that a salvage award was not warranted because the U.S. had objected to salvage of the aircraft. The stakes were high in this case because not only was the aircraft the last of its kind, but it also had a distinguished history in the Battles of Midway and Coral Sea. Given the risks attendant to any recovery attempt from the deep, rapidly moving water at the wreck site, the Navy preferred in situ preservation over any attempt to move the wreck. Conversely the salvor perceived the exceptional value associated with this unique wreck.

The legal principles underlying the case law have also found voice in the resolution of ownership issues between U.S. governmental interests and state or foreign governments. The cases of the H.L. HUNLEY and His Majesty's ship LA BELLE illuminate the point. HUNLEY was the first submarine successful in sinking an enemy combatant ship, USS HOUSATONIC, on February 17, 1863. LA BELLE was a transport employed by French explorer LaSalle in his ill-fated 17th century Gulf Coast colonial adventure.

Adventure author Clive Cussler found the long-lost wreck of the H.L. HUNLEY in 1995, whereupon Mr. Cussler delivered the coordinates of the wreck to the Navy, which began consideration of disposition of the historic wreck while taking extraordinary measures to protect it from disturbance. ²¹ The matter was complicated by the projected necessity for up to $40 million to so conserve the wreck to prevent it from falling to dust within a couple of years and to provide for any human remains that might be found within it. The key legal principle was that it, like CSS ALABAMA, was found to be property of the Confederacy to which the United States is the successor sovereign. The problem was that while the United States claimed ownership through the Navy, South Carolina attempted to claim it as resting in that State's waters, which it did not, and Alabama sought to wrest control because HUNLEY had been built in Mobile. The matter was finally resolved with a political compromise between the states and an agreement by the United States to allow HUNLEY to remain in South Carolina indefinitely so long as the state recognized the Federal Government's legal title to the wreck.

And if that were not a sufficiently politically charged environment in which to assert sovereign title, the case of LA BELLE presented an even more troublesome case. Archaeologists of the Texas Historical Commission discovered the wreck of LA BELLE in Matagordo Bay, Texas, where it had rested since 1686. With backing from the State of Texas, over $4 million was invested in recovery efforts, including building a cofferdam around the wreck site to support a high-quality archaeological project. But the legal headache was likely to surpass the probable condition of the crewmember whose remains were found in a fetal position near what remained of a brandy cask on board. So remarkable was the archaeological undertaking that it garnered substantial press coverage, including a feature pictorial article in the Smithsonian magazine.²² And it is that which demanded the attention of the French Embassy, whose officials might have thought it anomalous that the United States should claim ownership of CSS ALABAMA in French waters while LA BELLE was being explored without France's consent. The matter was complicated by Federal-state relationship issues, but resolved with an arrangement reciprocal to that in place regarding CSS ALABAMA; the agreement recognized the title of the Government of France in LA BELLE while permitting the intensive Texas research program to go forward.

While presumption of the indefinite existence of a sovereign owner warrants indefinite duration of the sovereign's intention of ownership, there are also policy reasons for the disparate treatment of sunken public and private vessels. One reason to favor abandonment doctrine with respect to privately owned ships is to resolve ambiguity in ownership where their former incarnate owners or corporate entities have faded from memory. The second is that one of the principal rationales for the law of salvage is to return commercial goods and choses in action back to the stream of commerce. But neither of those fit with the circumstances of sunken sovereign ships that the sovereign owner could recover if it so desired. Separately, sovereign warships are frequently the final resting places of the soldiers or sailors who sailed aboard them, they may contain munitions or other substances potentially harmful to those who disturb them or to the environment, and/or they may contain objects of unique historical or cultural significance or represent significant historical circumstances. The many German U-boats sunken in the Atlantic and United States waters are no less hallowed to those who perished with them than to the U.S. sailors entombed in USS ARIZONA. As evidenced by the oil leaks occurring from many World War II wrecks in the Pacific, there is certainly a large amount of oil that sank with them. ²³ Unmindful disturbance could do irreparable harm to the marine environment and the economies of coastal states. And any hope of historical study was lost when when Phillipine fishermen paid by American traders in historic goods dynamited the wreck of the USS CHARLESTON ²⁴ to recover coins to be sold.

Another policy argument for not subjecting sovereign wrecks to the vicissitudes of presumptive abandonment or salvage is that to do so is to breach the public trust which built or outfitted them in the first place. Absent an authorized abandonment or consent to salvage, the sovereign's or public interest continues withstanding sinking. As a logical matter why should sinking somehow change the character of a sovereign ship? An infant might think something ceases to exist when covered with a blanket. But a sovereign ship covered with water exists in the same condition on the bottom as when sinking from under the crew onboard. And by the same token, the body public which created it continues to exist indefinitely after the sinking, ever able to affirmatively abandon it or available to reject or consent to salvage.

Two instances stand out as of the worst sort when even commercial legal nicety is not observed as to sunken sovereign property. Assuming the facts around the CSS ALABAMA bell to have been true, the public as a whole was denied its benefit from 1926 to 1990 while it was sequestered in private hands. Similarly, a swivel gun from one of the gunboats of Benedict Arnold's fleet on Lake Champlain was lost to the interested public while it too was in unauthorized private hands. Having been reportedly recovered in the 1930s, unprofessional cleaning removed its provenance before it rested on an Adirondack mantelpiece form more than fifty years out of the public view. The loss was unique because the swivel gun had been cast by the same foundry that cast the Liberty Bell. ²⁵ While the later instances are of the worst sort, many divers and commercial interests would take sovereign property funded by the respective publics and put it in private hands outside the enjoyment of the publics who paid for it.

Accordingly U.S. policy found voice through the 2001 Presidential Statement on the United States Policy for the Protection of Sunken State Craft. ²⁶ The position and policies expressed thereby are consistent with the positions expressed by the other major maritime powers and reflect the experience hard won through years of litigation.

It is in that context of protecting sunken sovereign ships and aircraft of the United States, that Government officials sought legislation to codify and ensure the uniformity of application of the body of law that has emerged over the last twenty years. It is apparent they sought to minimize risk to sovereign wrecks and to replace the delay and cost of litigation to enforce applicable case law with statutorily certain results. Title XIV of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 ²⁷ pertaining to "Sunken Military Craft" (hereinafter "Sunken Military Craft act" or "SMCa" ²⁸) and providing for their protection was passed on October 8, 2004, and signed into law on October 28, 2004. ²⁹

The principle premise of the SMCa is that "Right, title, and interest of the United States in and to any United States sunken military craft--- (1) shall not be extinguished except by an express divestiture of title by the United Sates; and (2) shall not be extinguished by the passage of time, regardless of when the sunken military craft sank."³⁰ This is the doctrine of perpetual sovereign title enunciated by case law extending from the U.S. Constitution's Property Clause. ³¹ The principle is founded on the view that the body politic as sovereign should not be deprived of its property through application of subordinate law other than as prescribed. Prior application had refined the rule to mean that only Congress might act to give authority to abandon or dispose of the vessels and aircraft of the United States. ³²

The statute defines covered "sunken military craft" as all or any portion of "any sunken warship, naval auxiliary, or other vessel that was owned or operated by a government on military noncommercial service when it sank[,]" along with sunken military aircraft and spacecraft, and their associated contents, ³³ and reaches them across debris fields. ³⁴ All activity and attempts "directed at a sunken military craft that disturbs, removes, or injures any sunken military craft," except as authorized or subject to a permit, is prohibited. ³⁵ Those who violate the prohibition are subject to civil penalties of up to $100,000 per day of violation and liable for damage to and specified consequential damages arising from the prohibited activities ³⁶including mitigation of damage resulting from disturbance. ³⁷ And violators may be subject to otherwise applicable criminal law sanctions. ³⁸ Activities otherwise prohibited may be carried on only as provided by a permit issued by the "Secretary concerned." ³⁹

Significantly, the SMCa excludes sunken military craft from the operation of the two tenets of maritime law frequently used to assert discoverers' claims against sunken wrecks. The law of finds has long been favored as a means to win the award of title to the historic shipwrecks premised on abandonment. Absent a showing of abandonment, recourse could be had under the law of salvage, awards of which could result in some large portion of recovered materials being awarded to the salvor. The plaintiff who sought to recover the Navy's TBD-1 "Devastator" ⁴⁰ asserted both causes, albeit unsuccessfully. To preclude recourse to those remedies, the SMCa prescribes that "The law of finds shall not apply to --- (1) any United Sates sunken military craft, wherever located; or (2) any foreign sunken military craft located in United States waters." ⁴¹ It further states that "No salvage rights or awards shall be granted with respect to --- (1) any United States sunken military craft without the express permission of the United States; or (2) any foreign sunken military craft located in United States waters without the express permission of the relevant foreign state." ⁴² The provisions extend the jurisdiction of the United States to the maximum degree possible, consistent with the notion that sovereign vessels carry their sovereign status with them and that a coastal state can regulate activities within its waters. Note however that the exercise of jurisdiction in the latter case is without prejudice to sovereign ownership rights in foreign vessels.

The law also strengthens common interests in sunken military craft with foreign sovereigns through extension of the SMCa's general prohibition to foreign sunken military craft and other provisions. The Secretary of the Navy may carry out permitting at the request and on behalf of a foreign state. ⁴³ And "the Secretary of State, in consultation with the Secretary of Defense, is encouraged to negotiate and conclude bilateral and multilateral agreements with foreign countries with regard to sunken military craft...." ⁴⁴ These are important provisions. While the SMCa extends the protection of the Act to United States sunken military craft wherever situate, ⁴⁵ the cooperation of foreign coastal and port states will be necessary to provide practical protection for U.S sunken state craft outside the ken of the United States. Reciprocity will further those interests.

The SMCa is consistent with notions of sovereign prerogative. The law of finds may be applied to private vessels whose owners' inaction for an extended period evidences intentional or neglectful abandonment. ⁴⁶ Traditional salvage principles also may be apposite to the recovery of commercial vessels and cargo for policy reasons favoring the return of choses in action to the stream of commerce and encouraging the recovery of marine property in peril. But the same inaction of a state with respect to a sovereign vessel may represent a conscious decision on the part of the sovereign owner to avoid risk of environmental damage, a national policy regarding the sanctity of the watery graves of its sailors, or a conscious decision to await technological improvement of recovery techniques. While private owners of sunken vessels may disappear after the passage of a few years, the continued existence of a sovereign owner or successor sovereign is presumptive.

The SMCa therefore preserves the deliberateness of consideration with respect to preservation of sunken military craft. Application of the law of finds to sunken military craft might compel a sovereign owner to make poorly ordered recovery sequence decisions simply to avoid losing its property. Applicability of salvage law might have the same coercive effect on a government's decision making, or might divest the sovereign of valuable or historic property simply to pay a salvage award. A higher level of deliberation and freedom from decision-making externalities should work to the overall benefit of maritime historic preservation since officials should be free to establish priorities consistent with the availability of funds and adequate to complete curation professionally. Presumably better decisions in the overall public interest would derive free from selfish commercial motives. Critics of the policies underpinning the SMCa might argue that reservation of recovery decisions to sovereigns impede recovery overall, but since available permitting procedures⁴⁷ facilitate public-private partnerships, recoveries that inure to the public benefit should not be impaired. On the other hand, the law of finds or salvage as applied to sovereign wrecks merely subsidizes private recoveries at public expense, with no guarantee that the public may view or study that sovereign property in the future.

The principle of perpetual sovereign title to sovereign wrecks may well turn out to be one of the most important tools for historic preservation available at this time when almost all of the world's wrecks have become accessible. Reinforcement and codification of the principle is vitally important.

Appendices I and II below.

Presidential Statement on United States Policy
for the Protection of Sunken State Craft ⁴⁸

Thousands of Untied States government vessels, aircraft and spacecraft ("State craft"), as well as similar State craft of foreign nations, lie within, and in waters beyond, the territorial sea and contiguous zone. Because of recent advances in science and technology, many of these sunken government vessels, aircraft and spacecraft have become accessible to salvors, treasure hunters and others. The unauthorized disturbance or recovery of these sunken State craft and any remains of their crews and passengers, is a growing concern both within the United States and internationally. In addition to deserving treatment as gravesites, these sunken State craft may contain objects of a sensitive national security, archaeological or historical nature. They often also contain unexploded ordnance that could pose a danger to human health and the marine environment if disturbed, or other substances, including fuel oil and other hazardous liquids, that likewise pose a serious threat to human health and the marine environment if released.

I believe that United States policy should be clearly stated to meet his growing concern. Pursuant to the property clause of Article IV of the Constitution, the United States retains title indefinitely to its sunken State craft unless title has been abandoned or transferred in the manner Congress authorized or directed. The United States recognizes the rule of international law that title to foreign sunken State craft may be transferred or abandoned only in accordance with the law of the foreign flag State.

Further, the United States recognizes that title to a United States or foreign sunken State craft, wherever located, is not extinguished by passage of time, regardless of when such sunken State craft was lost at sea.

International law encourages nations to preserve objects of maritime heritage wherever located for the benefit of the public.

Those who would engage in unauthorized activities directed at sunken State craft are advised that such disturbance or recovery should not occur without the express permission of the sovereign, and should only be conducted in accordance with professional scientific standards and with the utmost respect for any human remains.

The United States will use its authority to protect and preserve sunken State craft of the United Sates and other nations, whether located in the waters of the United States, a foreign nation, or in international waters.

H.R.4200

Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Enrolled as Agreed to or Passed by Both House and Senate)

TITLE XIV--SUNKEN MILITARY CRAFT 49

Sec. 1401. Preservation of title to sunken military craft and associated contents. Sec. 1402. Prohibitions. Sec. 1403. Permits. Sec. 1404. Penalties. Sec. 1405. Liability for damages. Sec. 1406. Relationship to other laws. Sec. 1407. Encouragement of agreements with foreign countries. Sec. 1408. Definitions.

SEC. 1401. PRESERVATION OF TITLE TO SUNKEN MILITARY CRAFT AND ASSOCIATED CONTENTS.

Right, title, and interest of the United States in and to any United States sunken military craft-- shall not be extinguished except by an express divestiture of title by the United States; and shall not be extinguished by the passage of time, regardless of when the sunken military craft sank.

SEC. 1402. PROHIBITIONS.

1. Unauthorized Activities Directed at Sunken Military Craft- No person shall engage in or attempt to engage in any activity directed at a sunken military craft that disturbs, removes, or injures any sunken military craft, except--
   1. as authorized by a permit under this title;
   2. as authorized by regulations issued under this title; or
   3. as otherwise authorized by law.
2. Possession of Sunken Military Craft- No person may possess, disturb, remove, or injure any sunken military craft in violation of--
   1. this section; or
   2. any prohibition, rule, regulation, ordinance, or permit that applies under any other applicable law.
3. Limitations on Application-
   1. ACTIONS BY UNITED STATES- This section shall not apply to actions taken by, or at the direction of, the United States.
   2. FOREIGN PERSONS- This section shall not apply to any action by a person who is not a citizen, national, or resident alien of the United States, except in accordance with--
      1. generally recognized principles of international law;
      2. an agreement between the United States and the foreign country of which the person is a citizen; or
      3. in the case of an individual who is a crew member or other individual on a foreign vessel or foreign aircraft, an agreement between the United States and the flag State of the foreign vessel or aircraft that applies to the individual.
   3. LOAN OF SUNKEN MILITARY CRAFT- This section does not prohibit the loan of United States sunken military craft in accordance with regulations issued by the Secretary concerned.

1. In General- The Secretary concerned may issue a permit authorizing a person to engage in an activity otherwise prohibited by section 1402 with respect to a United States sunken military craft, for archaeological, historical, or educational purposes, in accordance with regulations issued by such Secretary that implement this section.
2. Consistency With Other Laws- The Secretary concerned shall require that any activity carried out under a permit issued by such Secretary under this section must be consistent with all requirements and restrictions that apply under any other provision of Federal law.
3. Consultation- In carrying out this section (including the issuance after the date of the enactment of this Act of regulations implementing this section), the Secretary concerned shall consult with the head of each Federal agency having authority under Federal law with respect to activities directed at sunken military craft or the locations of such craft.
4. APPLICATION TO FOREIGN CRAFT- At the request of any foreign State, the Secretary of the Navy, in consultation with the Secretary of State, may carry out this section (including regulations promulgated pursuant to this section) with respect to any foreign sunken military craft of that foreign State located in United States waters.

1. In General- Any person who violates this title, or any regulation or permit issued under this title, shall be liable to the United States for a civil penalty under this section.
2. Assessment and Amount- The Secretary concerned may assess a civil penalty under this section, after notice and an opportunity for a hearing, of not more than $100,000 for each violation.
3. Continuing Violations- Each day of a continued violation of this title or a regulation or permit issued under this title shall constitute a separate violation for purposes of this section.
4. IN REM LIABILITY- A vessel used to violate this title shall be liable in rem for a penalty under this section for such violation.
5. OTHER RELIEF- If the Secretary concerned determines that there is an imminent risk of disturbance of, removal of, or injury to any sunken military craft, or that there has been actual disturbance of, removal of, or injury to a sunken military craft, the Attorney General, upon request of the Secretary concerned, may seek such relief as may be necessary to abate such risk or actual disturbance, removal, or injury and to return or restore the sunken military craft. The district courts of the United States shall have jurisdiction in such a case to order such relief as the public interest and the equities of the case may require.
6. LIMITATIONS- An action to enforce a violation of section 1402 or any regulation or permit issued under this title may not be brought more than 8 years after the date on which--
   1. all facts material to the right of action are known or should have been known by the Secretary concerned; and
   2. the defendant is subject to the jurisdiction of the appropriate district court of the United States or administrative forum.

1. In General- Any person who engages in an activity in violation of section 1402 or any regulation or permit issued under this title that disturbs, removes, or injures any United States sunken military craft shall pay the United States enforcement costs and damages resulting from such disturbance, removal, or injury.
2. Included Damages- Damages referred to in subsection (a) may include--
   1. the reasonable costs incurred in storage, restoration, care, maintenance, conservation, and curation of any sunken military craft that is disturbed, removed, or injured in violation of section 1402 or any regulation or permit issued under this title; and
   2. the cost of retrieving, from the site where the sunken military craft was disturbed, removed, or injured, any information of an archaeological, historical, or cultural nature.

1. In General- Except to the extent that an activity is undertaken as a subterfuge for activities prohibited by this title, nothing in this title is intended to affect--
   1. any activity that is not directed at a sunken military craft; or
   2. the traditional high seas freedoms of navigation, including--
      1. the laying of submarine cables and pipelines;
      2. operation of vessels;
      3. fishing; or
      4. other internationally lawful uses of the sea related to such freedoms.
2. International Law- This title and any regulations implementing this title shall be applied in accordance with generally recognized principles of international law and in accordance with the treaties, conventions, and other agreements to which the United States is a party.
3. Law of Finds- The law of finds shall not apply to--
   1. any United States sunken military craft, wherever located; or
   2. any foreign sunken military craft located in United States waters.
4. Law of Salvage- No salvage rights or awards shall be granted with respect to--
   1. any United States sunken military craft without the express permission of the United States; or
   2. any foreign sunken military craft located in United States waters without the express permission of the relevant foreign state.
5. Law of Capture or Prize- Nothing in this title is intended to alter the international law of capture or prize with respect to sunken military craft.
6. Limitation of Liability- Nothing in sections 4281 through 4287 and 4289 of the Revised Statutes (46 U.S.C. App. 181 et seq.) or section 3 of the Act of February 13, 1893 (chapter 105; 27 Stat. 445; 46 U.S.C. App. 192), shall limit the liability of any person under this section.
7. Authorities of the Commandant of the Coast Guard- Nothing in this title is intended to preclude or limit the application of any other law enforcement authorities of the Commandant of the Coast Guard.
8. Prior Delegations, Authorizations, and Related Regulations- Nothing in this title shall invalidate any prior delegation, authorization, or related regulation that is consistent with this title.
9. Criminal Law- Nothing in this title is intended to prevent the United States from pursuing criminal sanctions for plundering of wrecks, larceny of Government property, or violation of any applicable criminal law.

The Secretary of State, in consultation with the Secretary of Defense, is encouraged to negotiate and conclude bilateral and multilateral agreements with foreign countries with regard to sunken military craft consistent with this title.

SEC. 1408. DEFINITIONS.

In this title: ASSOCIATED CONTENTS- The term 'associated contents' means-- the equipment, cargo, and contents of a sunken military craft that are within its debris field; and the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field. SECRETARY CONCERNED- The term 'Secretary concerned' means-- subject to subparagraph (B), the Secretary of a military department; and in the case of a Coast Guard vessel, the Secretary of the Department in which the Coast Guard is operating. SUNKEN MILITARY CRAFT- The term 'sunken military craft' means all or any portion of-- any sunken warship, naval auxiliary, or other vessel that was owned or operated by a government on military noncommercial service when it sank; any sunken military aircraft or military spacecraft that was owned or operated by a government when it sank; and the associated contents of a craft referred to in subparagraph (A) or (B), if title thereto has not been abandoned or transferred by the government concerned. UNITED STATES CONTIGUOUS ZONE- The term `United States contiguous zone' means the contiguous zone of the United States under Presidential Proclamation 7219, dated September 2, 1999. UNITED STATES INTERNAL WATERS- The term `United States internal waters' means all waters of the United States on the landward side of the baseline from which the breadth of the United States territorial sea is measured. UNITED STATES TERRITORIAL SEA- The term `United States territorial sea' means the waters of the United States territorial sea under Presidential Proclamation 5928, dated December 27, 1988. UNITED STATES WATERS- The term `United States waters' means United States internal waters, the United States territorial sea, and the United States contiguous zone.

108TH CONGRESS 2nd Session
REPORT
2004
108-767
RONALD W. REAGAN NATIONAL DEFENSE
AUTHORIZATION ACT FOR
FISCAL YEAR 2005
CONFERENCE REPORT
TO ACCOMPANY
H.R. 4200

Page 817
TITLE XIV--SUNKEN MILITARY CRAFT
LEGISLATIVE PROVISIONS ADOPTED
Sunken military craft (sec. 1401-1408)

The House bill contained several provisions (sec. 1021-1028) that would protect sunken U.S. military vessels, aircraft, and spacecraft, as well as the remains and personal effects of their crews from salvage, recovery, or other disturbance without authorization from the secretary of the military department concerned. These provisions would clarify the circumstances under which such sunken craft, entitled to sovereign immunity when they sank, remain the property of the flag state until officially abandoned. They would also encourage the negotiation of international agreements to protect sunken military craft. Finally, the provisions would authorize the secretary of the military department concerned to issue and enforce permits for activities directed at sunken U.S. military craft, including contract salvage. This system would not invalidate any permitting system currently in place nor affect any prior lawful transfer or express abandonment of title to any sunken military craft. The Senate amendment contained no similar provision. The Senate recedes with an amendment that would authorize the Secretary of the Navy, in consultation with the Secretary of State, to apply the permitting system established by these provisions to any foreign sunken military craft located in United States waters, if requested by the flag state of that craft. It would also authorize in rem liability against a vessel involved in a violation of these provisions, and would authorize the Secretary concerned to request the Attorney General to seek other relief in certain cases. It would establish an eight-year statute of limitations for actions to enforce violations of these provisions or any permit issued thereunder. It would also extend the prohibition on applying the law of finds to sunken military craft to foreign craft located in U.S. waters. Finally, it makes technical changes to the definitional section.

² See, Grotius, Hugo, On the Law of War and Peace, Book II, Chapter 3, section VI.

³ Id., Book II, Chapter 18.

⁴ Id., Book II, Chapter 18, sections IV & XXV.

⁵ UNCLOS Art. 17.

⁶ Id., Arts. 19 and 20.

⁷ Grotius, note 2 supra, Book II, Chapter 18, section IV.

⁸ UNCLOS, Art. 96.

⁹ Communication from the German Foreign Ministry, October 30, 2003.

¹⁰ Communication from the Government of Japan, September 13, 2003.

¹¹ Communication from the Government of the Russian Federation, October 3, 2003.

¹² Embassy of Spain, Washington, DC, Note No. 128, December 19, 2002.

¹³ Communication from the UK Foreign and Commonwealth Office, July 4, 2003.

¹⁴ Cook Islands, Fiji Islands, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu, and Pacific Island Territories of American Samoa, Northern Mariana Islands, French Polynesia, Guam, New Caledonia, Tokelau, and Wallis and Futuna.

¹⁷ 763 F.Supp. 1293 (D.N.J. 1991), aff'd, 973 f.2D 212 (3d Cir. 1992), cert. den., 113 S.Ct. 1578 (1993)

¹⁸ CSS ALABAMA, which rests in French waters, is managed by France's Association CSS Alabama under the auspices of the French Ministry of Culture pursuant to a 1995 agreement with the United States Government recognizing United States title to the wreck and providing for curatorial collaboration and cultural exchanges. United States ownership was recognized by the government of the Republic of France in the Verbal Note No 2826 (Oct. 18, 1991).

¹⁹Sea Hunt v. Unidentified Shipwrecked Vessel, 221 F.3d 634 (4th Cir. 2000), cert. den., 121 S.Ct. 1079 (2001).

²⁰ International Aircraft Recovery, LLC. v. Unidentified, Wrecked, and Abandoned Aircraft, 218 F.3d 1255 (11th Cir. 2000

²¹ The Navy installed a camera in a lighthouse overlooking the wreck site off the Charleston, South Carolina, coast while the Coast Guard maintained patrol surveillance of the site. Reported offers of up to $100,000 for the HUNLEY's propeller, for example, prompted the action.

²² Vol. 28, no. 1, April 1997.

²³ 2 million gallons were pumped from the sunken USS MISSISSENEWA. SPREP Agenda Item 8.2.3: Progress on Implementation of Regional Strategy to Address Marine Pollution from World War II Wrecks, http://www.sprep.org.ws/Publication/webpage/002sprep14th/14SM_Off_WP_8_2_3_.pdf

²⁴ USS CHARLESTON, Admiral Dewey's flagship, was lost in February, 1898. It carried a substantial number of period silver and gold coins of Mexican and U.S. origin.

²⁵ The swivel gun was recovered from a dealer in 1998 without cost to the Government. It is on loan from the Naval Historical Center to the Lake Champlain Maritime Museum, where it is on public display.

²⁶ Public Papers of the Presidents: William J. Clinton, vol. III, page 2956, Jan. 19, 2001. The entire text is appended hereto as Appendix I.

²⁷ HR 4200.

²⁸ As part of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, reference is made hereinafter to Title XIV as the "Sunken Military Craft act" ("SMCa"), inasmuch as the Title is sufficiently discrete to as to have stood as a separate act of Congress. The full text of the Sunken Military Craft act is appended at the end of this article as Appendix II.

²⁹ P.L. 108-375.

³⁰ Sec. 1401.

³¹ Article 4, Section 3, Clause 2. "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

³² See, USS HATTERAS, note 16, supra.

³³ Sec. 1408 (3)

³⁴ Sec. 1408 (1) (B)

³⁵ Sec. 1402

³⁶ Sec. 1404 (a) - (c)

³⁷ Sec. 1405

³⁸ Sec. 1406 (i)

³⁹ Sec. 1403

⁴⁰ n.20, supra.

⁴¹ Sec. 1406 (c)

⁴² Sec. 1406 (d)

⁴³ Sec. 1403 (d)

⁴⁴ Sec. 1407

⁴⁵ Although not so stated explicitly, Congressional intent may be inferred from the absence of language of geographic limitation generally with respect to United States sunken military craft, noting the explicit inapplicability of the law of finds to "any United States sunken military craft, wherever located[,]" in contrast to exclusion of that body of law from applicability to "any foreign sunken military craft located in United States waters[,]" and inapplicability of the law of salvage to "any foreign sunken military craft located in United States waters without the express permission of the relevant foreign state." Sec. 1406 (c) - (d). Since Congress limited the geographic applicability of certain provisions, the SMCa's otherwise unlimited prescriptions with respect to other matters, consistent with the basic tenets of international law with regard to portable sovereign immunity, evidence that more expansive intent.

⁴⁶See, e.g., Deep Sea Research, Inc. v. The Brother Jonathan, 102 F.3d 379, 387-88 (9th Cir. 1996), aff'd in part, vacated in part on other grounds, and remanded, 118 S.Ct. 1464 (1998)

⁴⁷ See, e.g., 32 CFR 767.

⁴⁸ Public Papers of the Presidents: William J. Clinton, vol. III, page 2956, Jan. 19, 2001.

⁴⁹ As part of the FY 2005 National Defense Authorization Act, reference is made to Title XIV as the "Sunken Military Craft act" (SMCa).

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