Who has Property Rights in Abandoned Shipwrecks?

March 16, 2020  Robert Gmeiner

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If you lose something valuable and never bother to look for it for decades and then someone else finds it, is it still yours?  Or have you abandoned it and effectively relinquished your property right?  This is an issue with shipwrecks that wait to be discovered by marine archaeologists and treasure hunters.  An estimated three million of them lurk in the depths of the ocean, both within and beyond territorial waters.

At one time, treasure hunters and archaeologists tended to work together.  Treasure hunters frequently got to keep most or all of the proceeds from their discoveries, which were frequently preserved.  Finding sunken ships is still difficult, but it has become easier with technological advances.  This difficulty is why they still sit on the ocean floor with their historic relics and cargoes of precious metals. 

In 1988, the Abandoned Shipwreck Act granted rights to abandoned, sunken ships within 22 kilometers of the shore to the states, not the federal government, as long as it was embedded in mud and sand, which many of them were.  Just under two decades ago, this began to change in 2000 when Spain won a legal victory over treasure hunters in a federal appeals court and received discovered relics from its long-sunken ships.  In 2004, the Sunken Military Craft Act came into force, which grants the United States government and foreign governments exclusive rights to their own sunken military vessels in American waters, regardless of their age or abandonment.  Most ships from the colonial days carried military equipment even if they also served commercial purposes.  This law has been a disaster for treasure hunters.

Archaeologists and treasure hunters don’t always get along.  National governments, unlike Florida, have not been keen on compensating treasure hunters for their work.  Treasure hunters, understandably, don’t want to incur massive costs to find sunken ships because, when they succeed, their discoveries just get taken away.  They quite correctly point out that these ships will remain undiscovered without their work.  This assertion is so reasonable because national governments were not actively looking for these sunken ships for centuries; they only wanted them back when someone else found them. It seems rather childish to abandon one’s things and not want them until somebody else gets them.

A good resolution must consider economic incentives, which are shaped by property rights.  At the present time, laws grant foreign governments ownership of these ships.  For ships that did not belong to a foreign government, in many cases laws are favorable to treasure hunters.  For ships lost in American waters, most of them belonged to foreign governments because they date from before the country’s founding.  Not rewarding treasure hunters for their work destroys their incentive to find them.

A suitable regime of property rights should recognize the principle of abandonment – if its owner lets decades pass and does not search for the ship, it should lose its claim.  Allowing treasure hunters free reign to take historically important relics also has its drawbacks, such as interfering with valuable archaeological work.  A good resolution is to define property rights to the value of the find, but not the find itself.  In such a case, the foreign government would have the right to determine the final disposition of the find, but would have to compensate the treasure hunter the full value.  This necessitates a discussion about determining the value of the find, which Florida has historically done fairly well.  This would eliminate archaeologists’ objections and encourage continued searching for sunken ships.