National Security, the Sunken Military Craft Act, and Federal Cultural Heritage Law
By: Bree Evans
“Sunken military craft are not only of historical importance to the Nation, having served in all of its most critical moments, but are also often war graves and memorials to the men and women who served aboard them. Many carry unexploded ordnance that can pose public safety hazards or oil and other materials that, if not properly handled, may cause substantial harm to the environment. Furthermore, many hold state secrets and technologies of significance to national security.”– Final Rule 32 CFR 767
Early this year, the World War II aircraft carrier USS Hornet was discovered off the coast of the Solomon Islands in the South Pacific. It was found by the research team of the late Paul Allen (of Microsoft fame). The USS Hornet sank in October 1942 with 140 sailors still on board and had been resting at the bottom of the ocean for almost eighty years, with its exact location unknown. It is just one of an estimated 17,000 United States sunken vessels scattered in oceans around the world.
Warships around the world are vulnerable to salvage. In 1972, China secretly salvaged the British submarine HMS Poseidon, which China admitted to in 2009. The Australian warship HMAS Perth has been illegally salvaged for metal, leaving only 40% of the wreck remaining. And, half a dozen sunken warships have gone missing from the Java Sea, all within relatively recent history.
Additionally, nothing in international law expressly establishes the legal status of a sunken warship, potentially leaving these crafts vulnerable to claims. There has been debate, for instance, on whether sovereign immunity applies to a sunken state craft, when the United Nations Convention on the Law of the Sea applies to operating vessels (those “under the command of an officer” (the argument: a sunken ship is no longer operable). Under common law and international maritime law, abandonment can sometimes be implied. But customary international law suggests that sunken state craft should be protected and respected. Still, in International Aircraft Recovery, L.L.C. v. Unidentified, Wrecked & Abandoned Aircraft, the Eleventh Circuit reversed the holding of a district court that had granted permission for private salvage operations on a sunken United States Navy “Devastator” TBD-1 torpedo bomber over the objections of the United States. The Eleventh Circuit noted, “[a]lthough the court’s opinion strongly suggests that the court believed the United States had abandoned the TBD-1, it was correct to avoid such a holding based on the evidence before it.”
These legal uncertainties necessitated a clear U.S. policy on its ships. President Clinton’s Statement on United States Policy for the Protection of Sunken Warships in 2001 proclaimed that the United States retains title indefinitely to sunken craft unless title has been transferred or abandoned (in the way Congress directs), that title to a sunken craft may be transferred or abandoned in accordance of the law of the flag state, and proclaimed that the United States recognizes that title to a state craft (United States or foreign) is not extinguished by time.
In 2005, the Sunken Military Craft Act was signed into law as part of a Defense Authorization Act and codified much of President Clinton’s Statement. The Sunken Military Craft Act affirmatively asserts the United States’ ongoing right, title, and interest in all ships and aircraft that are submerged, no matter where they may be in the world. The Sunken Military Craft Act’s establishment of ongoing claim offers the vessels more robust protections under international law through the affirmation of ownership and makes clear that the United States has not abandoned them. Additionally, the Act prohibits unauthorized actions or possession of the crafts by United States citizens, nationals, and residents, and foreign nationals in United States’ territorial jurisdiction, with a penalty of up to $100,000 available for each day in violation.
Sunken military craft are one of the most prevalent types of underwater archaeological resources in the world. In addition to protecting United States craft by asserting ongoing interest, the Sunken Military Craft Act also does something extraordinary for the protection of archaeological resources under United States federal law: the Act makes the violator liable for enforcement costs and damages. These damages may include “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 the Act. The damages also can include “the cost of retrieving . . . any information of an archaeological, historical, or cultural nature.”
The Sunken Military Craft Act was passed in 2005, and followed the language set down in 2000 for the National Marine Sanctuaries Act which set a strong tone for damages to natural and cultural resources contained in marine sanctuaries by including the costs of curation, conservation, replacement, restoration, enforcement, monitoring, and damage assessments. The National Marine Sanctuaries Act also set a maximum $100,000 a day civil penalty for violations.
The major federal archaeological protection laws that preceded these two laws (the Antiquities Act of 1909, Archaeological Resources Protection Act of 1979, Native American Graves Protection and Repatriation Act of 1990) did not (and still do not) allow for the recovery of damages for the cost of stabilizing the affected resources. Those wishing to strengthen federal protection of archaeological resources should look to replicate the standard set for interference with underwater resources. Extending liability for damages to include care and preservation of a site could change the tide of looting and trafficking in domestic antiquities. However, it should be noted that there is nothing in the Sunken Military Craft Act requiring the craft be handled according to archaeological standards, so any future archaeological legislation should be sure to take this into consideration as well.