To many people, there is nothing more thrilling than the thought of finding and exploring an ancient, abandoned shipwreck. In addition to troves of gold and jewels, these sites often contain immense cultural and historical treasures. The United States estimates that there are more than 50,000 shipwrecks in state waters, of which 5%-10% may be historically significant. The Abandoned Shipwreck Act (1988) was established In an effort to protect these cultural resources. This post uses the fascinating case of Northeast Research v. One Shipwrecked Vessel, 729 F.3d 197 (2d Cir. 2013) to clarify the meaning of “abandoned” under the Abandoned Shipwreck Act.
Overview of Abandoned Shipwreck Act
The Abandoned Shipwreck Act (ASA) aims to protect historically significant shipwrecks by transferring title to these shipwrecks from the United States to the states where the shipwreck lies. The United States simultaneously claims and conveys title to abandoned shipwrecks that are embedded in or on submerged lands of a state and are included (or determined eligible for inclusion) in the National Register of Historic Places. Thus, for a state to acquire title to a shipwreck under ASA, a shipwreck must be abandoned, embedded, and historic. Since the Act does not define abandoned, the interpretation of this key term is left to the courts.
Northeast Research v. One Shipwrecked Vessel
As Judge Debra Ann Livingston poetically begins her opinion in Northeast Research, this case “arises from the chill depths of Lake Erie, where lies the intact shipwreck of an early nineteenth century wooden schooner.” In 2004, shipwreck hunter Northeast Research, LLC began procedures in federal court to be recognized as “the finder and salvor of the sunken vessel” by bringing an in rem suit against the ship itself (which is why the defendant here is “One Shipwrecked Vessel, Her Tackle, Equipment, Appurtenances and Cargo Located…”). Since the wreck is embedded “at an approximate depth of 170 feet on submerged New York land in the eastern basin of Lake Erie” near Dunkirk, it became known as the “Dunkirk Schooner.”
Because the Dunkirk Schooner is embedded in New York waters, the state of New York intervened to assert title to the wreck, based on the Abandoned Shipwreck Act. To determine who owned the shipwreck, the court had to determine whether the wreck had been abandoned (the wreck was already listed on the National Register and it was clearly embedded in state waters). If it was abandoned, title vested in the state of New York; if the wreck was not abandoned, Northeast Research could be granted a salvage award.
“Dunkirk Schooner” or the Caledonia/General Wayne
In order to show that the wreck was not abandoned, Northeast Research set forth a two-tier argument:
- The vessel was built in 1799 and christened the Caledonia (a merchant vessel-turned-battleship in the War of 1812), later restored and renamed the General Wayne (an Underground Railroad freedom boat); and
- One of the descendants (Hannah Reed Mays) of the General Wayne‘s co-owner (Rufus S. Reid) assigned her ownership interest in the vessel to Northeast.
In a typical “battle of the experts,” Northeast submitted an archaeological site assessment that found the following:
The cumulative physical evidence, including the Dunkirk Schooner’s distinctive “fiddlehead” bow, the notched rudder, measurements taken by divers, and other architectural features, “substantiates the fact that the Dunkirk Schooner is none other than the storied former warship and Underground Railroad freedom boat, the CALEDONIA/GENERAL WAYNE.”
New York State argued that the shipwreck was just an unidentified merchant vessel built around 1829. The state countered Northeast’s expert testimony with its own expert report that concluded “with a high degree of confidence” that the vessel is not the General Wayne.
[The expert] reached this conclusion based in part on the architecture and measurements of the Dunkirk Schooner, which he found were consistent with ships built to traverse the Welland Canal, completed in 1829…The General Wayne…had a reported length of 56 feet, which is nearly 20 feet shorter than the length of the shipwreck.
New York’s expert also testified that even though “the technology to locate and recover the vessel existed at or about the time of its sinking…there is no evidence that any salvage effort was ever made.”
Meaning of “Abandoned”: Explicit or Implied
In accordance with the Supreme Court’s assertion that “the meaning of ‘abandoned’ under the ASA conforms with its meaning under admiralty law,” the Northeast court looked to traditional admiralty law for guidance. Interestingly, admiralty courts allow an “assumption of nonabandonment” regarding wrecked vessels. This is apparently based on the “realistic premise that property previously owned but lost at sea has been taken involuntarily out of the owner’s possession and control by the forces of nature at work in oceans and waterways.” Therefore, under traditional maritime rules, “circumstances must show abandonment of a vessel was ‘absolute, without hope or expectation of recovery.'” States attempting to show abandonment under ASA must do so by clear and convincing evidence.
Most importantly, however, the court’s analysis of admiralty law regarding abandonment concluded that:
Abandonment pursuant to the ASA need not be proved by express or explicit statements of intent to abandon, but rather may be inferred from circumstantial evidence (provided such evidence is sufficiently strong as to satisfy the clear and convincing burden).
The court explained that a variety of factors may be considered to infer abandonment, including:
- Lapse of time
- Location of the wreck
- Circumstance of the wreck
- Whether parties presently claim ownership
- Whether such parties have attempted to locate or salvage the vessel, and
- Availability of technology to salvage the vessel
Relevance of Ship’s Identity
After all the back and forth over the identity of the Dunkirk Schooner, the court ultimately decided that the ship’s positive identification was not necessary to make a determination of ownership under ASA.
For obvious reasons, discovering the identity of a vessel, if ascertainable, is helpful in determining whether it is abandoned….But it does not follow that a shipwreck must be positively identified in order to adjudicate a state’s claim to title under the ASA….Imposing such a requirement (which, at any rate, is not to be found in the text of the ASA) would thus undermine the statute by condemning some wrecks and the artifacts associated with them to a watery limbo, vulnerable to further deterioration and destruction.
Having dismissed the issue of the vessel’s identity, the court moved to the dispositive issue of the shipwreck’s abandonment.
Dunkirk Schooner was Abandoned
Although questions of fact remained regarding the identity of the Dunkirk Schooner, the court reviewed the evidence in the light most favorable to Northeast. Thus, the court made its determination under the assumption that the shipwreck was in fact the Caledonia/General Wayne.
Even so, New York has demonstrated abandonment by clear and convincing evidence: there were no efforts to locate the wreck for over 150 years; General Wayne’s poor working condition and spoilable contents strongly call into question the economic worth of the vessel and the then-owners’ continued interest in recovery; and the alleged owners’ descendants have no proof of their ownership of the vessel, further suggesting abandonment by the original owners. We therefore uphold the district court’s conclusion that the Dunkirk Schooner was abandoned.
Related specifically to the second part of Northeast’s abandonment argument (Ms. Mays’s assignment of interest in the General Wayne), the court states that this argument is based on several significant assumptions:
First, that Mays’s great-great-great grandfather Rufus Reid did not abandon the General Wayne during his lifetime; second, that Reid bequeathed the General Wayne to his children (or that title otherwise passed to them) rather than to someone else; third, that title to the General Wayne thereafter passed to Reid’s descendants; and fourth, that those descendants did not abandon the General Wayne.
The court then proceeds to categorically reject these assumptions and the argument’s purported inference against abandonment.
Mays’s declaration…offers no documentary or other proof, or even personal belief, that the General Wayne remained in the family or that Mays inherited an ownership interest in the ship. Thus…there is no evidence supporting any of the assumptions necessary to transform the Mays Assignment into legitimate proof of ownership when faced with 150 years of non-interest. In these circumstances, no reasonable inference against abandonment may be drawn from the Mays Assignment.
Since the Dunkirk Schooner was found to be abandoned, title to the vessel automatically passed to New York state. The state intends to leave the shipwreck at the bottom of Lake Erie indefinitely. (Northeast Research claimed that it had intended to raise the sunken ship and put it on display in New York for all to see.)
The most important legal takeaway from the ruling in Northeast Research is that “abandoned” under the Abandoned Shipwreck Act can be inferred from a variety of factors related to the shipwreck—a wreck does not have to be explicitly abandoned. Due to this broad interpretation, salvors of abandoned shipwrecks are put in the odd predicament of having to prove that the ship was not abandoned in order to receive a salvage award. As a result, salvors must complete the extra step of obtaining assignments of interest from a shipwreck’s successor in interest, all the while hoping that the successor in interest is willing to make such an assignment.
Does this policy help to preserve historic shipwrecks or does it incentivize extralegal and potentially destructive salvage of shipwrecks? Is there a better solution? Let me know in the comments below.
Clint Tankersley is a Georgia attorney specializing in cultural heritage law. Read my bio here.