Is the Abandoned Shipwreck Act Good Policy?

The advent of SCUBA diving in the 1960s and 1970s led to a spate of treasure hunting in US waters that raised Congressional concerns about destruction of underwater cultural heritage. In 1987, Congress passed the Abandoned Shipwreck Act, relying on its exclusive jurisdiction over admiralty and maritime in the Constitution. Unfortunately, the Act was remarkably poorly drafted even for Congress, and has created an enduring legal tangle.[1]

The Act does not define what “abandoned” means.[2] Prior to the Act, the Submerged Lands Act of 1953 governed control of abandoned shipwrecks, essentially applying traditional ideas in the law of salvage.[3] Under the 1953 Act, many states claimed control of wrecks in their waters on the principle that the state government “found” the wreck. The circuit courts have split about what it means for a wreck to “embedded” in the seabed under the meaning of the 1987 Act.[4] The National Park Service has developed a more comprehensible version of “abandonment” indicating that a ship is abandoned after 30 days after sinking or with the filing of a notice of abandonment giving up title.

The Supreme Court could choose to resolve existing circuit splits and better define the meaning of the 1987 Act. At least one commentator has argued the 1987 Act is unconstitutional because it interferes with traditional admiralty jurisdiction committed to the federal courts and reduces uniformity by vesting control in state governments.[5] Proposals to improve the 1987 Act include (1) making wrecks over 100 years old federal property, and (2) granting limited salvage licenses. Congress could also amend its definitions to better explain the meaning of embedded and abandoned.

References [1] Trevor Hass, Try Not to Give Up the Ship! The Abandoned Shipwreck Act of 1987 and its Effect on Great Lakes Shipwrecks, 93 U. Det. Mercy L. Rev. 293, 295 (2016) (hereinafter Hass). [2] Hass, at 295. [3] Hass, at 296. [4] Hass, at 298. [5] Nathan Murphy, Scuttle the Abandoned Shipwreck Act: The Unnecessary Unconstitutionality of American Historic Shipwreck Preservation, 36 Tul. Mar. L.J. 159, 175 (2011) (hereinafter Murphy).