Marie Malaro Excellence in Research and Writing Award Winner: Spring 1999

Andrew Morrow
Andrew Morrow
When History Takes a Dive:
The Wreck of the Maple Leaf and the Legal Question of Marine Cultural Property

 

"It is of great importance that the general public be given the opportunities to experience, consciously and intelligently, the efforts and results of scientific research. It is not sufficient that each result be taken up, elaborated, and applied by a few specialist in the field. Restricting the body of knowledge to a small group deadens the philosophical spirit of ALL people and leads to spiritual poverty."
Albert Einstein Ideas and Opinions, 1954

Abandon Ship!

Historical Background on the Wreck of the Maple Leaf

On the eastern bank, a quarter moon rose into the clear skies over the St. Johns River.1 The pale light picked out lines of oaks and cypress that formed the swampy forest of the shore. River pilot Romeo Murry guided the 178-foot Union steamship Maple Leaf through the calm, inky waters. The journey upriver to Palatka was uneventful. Now, back on familiar waters, they were heading back to Jacksonville.

It was 1864 and the Civil War has rampaged the country for several years. The Union and Confederacy skirmished constantly for supremacy in Florida. On February 20, at the small town of Olustee a few miles west of Jacksonville, the Confederacy humiliated the Union in a brutal battle, forcing a retreat back to Jacksonville. Weak and disorganized, the Union command was scared. The Confederacy could use this opportunity to assault Jacksonville and capture one of the few strong points the Union still had in the state.

Union commanders quickly sent troops from Folly Island, South Carolina to reinforce their position in Florida. The Maple Leaf, which carried from Folly Island some 400 tons of personal and regimental equipment from the 13th Indiana and the 112th and 169th New York Volunteers, and sutler and Army stores, arrived at Jacksonville on March 30. Before she could unload her cargo, the Maple Leaf was immediately ordered to convey a detachment of seventy-five officers and men with their mounts from the Independent Battalion Massachusetts Calvary to Palatka, a small town seventy miles south threatened with capture. After she delivered the calvary, the Maple Leaf took on some forty-five refugees of war (Union sympathizers) that had to be evacuated, or else risk capture by Confederate soldiers.2 Using the cover of darkness, as ordered, the Maple Leaf chugged down the dusky river, past shores infested with Confederate troops.

It was early morning, April 1. Most of the passengers and crew slept as the Maple Leaf rounded Mandarin Point, twelve miles south of Jacksonville. The twin side paddle-wheels, powered by her coal-fired boilers, churned the boat through the glassy waters at ten knots.

"The river was still and the channel easy, and if there had been anything as big as my hat on the water I could have seen it," river pilot Murry would later testify. At that point, he said, came the loud explosion right underneath the ship, lifting the pilothouse up and slamming Murry's head into the ceiling. Within five minutes, the Maple Leaf was on the bottom of the St. John's River in 20 feet of water. Four people [two deckhands and two firemen] died. Fifty-seven others escaped via lifeboats to complete the trip to Jacksonville. Three Confederate prisoners temporarily were left perched atop part of the Maple Leafs superstructure, which barely remained above the waterline.
Days later, Confederate troops boarded the Maple Leaf and burned down the upper decks that protruded above the waterline.

A board of inquiry found a new machine, created at the Confederate's arsenal at Charleston, sank the Maple Leaf: the submarine torpedo. These mines employed a simple design of a beer barrel filled with seventy pounds of small-grain cannon powder that floated just under the surface by conical buoys attached at the ends. The weapon proved to be very effective against shipping and could cripple the Union's superiority on the river. The Maple Leaf was the weapon's first claim in Florida, but far from the last.

The Maple Leaf was constructed in Kingston, Ontario in 1851 for the steamboat trade on Lake Ontario. In 1862, she was sold to "Boston shipowners who chartered it to the U.S. Army Quartermaster Department as an Army transport."4 In the Army, the Maple Leaf became one within the legions of workhorse steamers operated by the Union along the coast during the war. Although she survived the extreme icy winters of Canada, numerous wrecks and groundings, the rigors of ocean travel along the eastern seaboard, even capture by Confederate prisoners destined for Fort Delaware; it was in Florida, warm and almost benign, that fate awaited her.

With the end of the Civil War and the commencement of Reconstruction, traffic rapidly grew along the St. Johns River. Lying in a major channel, the wreckage of the Maple Leaf was a constant complaint for the river pilots. On September 20, 1870, the U.S. Treasury Department advertised in a "Sale of Wrecked Property", the remains of the Maple Leaf. No records of bids were recorded however.5 On September 1, 1882, the U.S. Army Engineer's Office advertised for bids for the removal of the wreckage and cargo of the Maple Leaf. Any material salvaged would become property of the U.S. Government. "A contract was executed on November 17, 1882, . . . by Rodrick G. Gross of Fernandina, Florida, to remove the wreck and cargo of the Maple Leaf by February 1, 1883, for the price of $3,880."6

Speculation has it his bid was so low because rather than attempting to remove the Maple Leaf and recover its cargo, he instead decided to blast away any remnants of the ship using explosives. He reported the mission accomplished, and . . . the case of the Maple Leaf was considered closed. . . . In 1888 the Corps of Engineers once again reported that the wreckage of the Maple Leaf was a hazard to navigation. Another contract was awarded, incredibly to the same Mr. Ross who was supposed to have done the work the first time. Once again, the job was reported to have been done.7
From this point, references of to the location of the wreckage of the Maple Leaf were systematically removed from all navigation charts. And she slept, thus forgotten, wrapped in a thick blanket of silt, to be awakened by a world very different from the one that laid her to rest.

Rough Seas Ahead

The Strife Over Recovery of Marine Cultural Property 8

The development of remote sensing equipment and SCUBA systems during the 1950's opened a new realm for the adventurous. The general public now had access to the numerous shipwrecks that littered the floor of U.S. waterways. Three particular groups developed special interests in the wrecks that lay in territorial seas. For sports divers with an interest in history, or in scavenging artifacts for personal collections, shipwrecks became a natural site for recreational diving. Unrestricted access, however, conflicted with professional salvors, who sought exclusive rights to these sites as profit-making opportunities, and with the marine archeologist, who believed that such haphazard collection and resultant site injury compromised the integrity of proper archeological inquiry.

As a market for marine artifacts grew, notions of vast wealth yet to be claimed incited a fury of professional divers to conduct large-scale salvage operations on the historic wrecks that laid beneath the waves. For professional salvors, the law offered an opportunity for profit. Traditionally, historic shipwrecks fell under the jurisdiction of federal admiralty law, which allowed, and in fact encouraged, the salvage of lost and abandoned goods at sea. In the Cobb Coin Co. Case9, Melvin A. Fisher, famous for his salvage of the Spanish 1622 plate fleet ship Nuestra Senora de Atocha and the numerous court appearances stemming from that action, defended the conduct of salvors:

public interest [is] best served by permitting the private salvor, held to high standard as achaeological [sic] guidelines as promulgated by archaeologist of private enterprise such as Treasure Salvors, Inc., the freedom to gather archaeological data from historic shipwrecks.10
Mr. Fisher and his fellow salvors argue that the public is best served by reintroducing artifacts back into the flow of commerce, as intended in the spirit of salvage law, after all information has been "gathered."

Salvage operations are expensive and time-consuming endeavors. Salvors must use direct and cost efficient methods so they can pay investors and still produce a profit. To reach their quarry quickly, salvors often employed blasting, dredging, and, at the site of the Atocha, propeller backwash, to free wrecks from surrounding corals and sediments. Such haphazard methodology compromises the integrity of proper archaeology for the sake of commercial value.11

For archaeologists, shipwrecks are time capsules that hold elemental evidence of social, economic, and technological systems. Like terrestrial sites, archaeologists believe preservation and interpretation of historic marine sites would best serve the public good. George Bass, a leading figure in underwater archaeology, noted that:

The public visits Mount Vernon and the Alamo, but we would not allow an entrepreneur to dismantle either for private gain. Similarly, historic shipwrecks should be preserved for the pleasure of future generations of visiting divers. Why should a salvor be allow to dismantle one of John Paul Jones' or LaSalle's ships to sell or own for his own benefit? A historic monument, regardless of where it is found, is a historic monument. It should be recognized as such by law...
There should be no distinction between the protection of historic or archaeological sites on land and historic archaeological sites underwater.12

To understand the components of these systems fully, archaeology demands precise study and measurements of artifacts and their relationship to each other. In a case that involved the removal of artifacts from a wreck in Biscayne National Park in Southern Florida, the court found that, "it is in the public interest that if artifacts are to be removed from the wreck, the removal to be conducted with scrupulous care."13 Such careful removal and study is a long, tedious process that can extend over many years and for which funding is often not available.

Like archaeologist, museums also have a public obligation in maintaining the integrity of information that can be gleaned from their collections. As early as 1973, museums have passed acquisition policies, based on this ethical consideration, which precluded the collecting of unscientifically excavated objects.14 Thus, a challenge arises to find a balance among the competing interests of these special interest groups that will ultimately best serve the public good.

Master of the Seas

Problems Between Federal Admiralty Laws and State Sovereignty

Federal Admiralty Jurisdiction

Sea laws can be traced back to 1600 BC in the Code of Hammurabi from ancient Babylon, in which some of the basic concepts of modem Admiralty laws are formulated.15 English maritime law evolved from the court system at a time when piracy was a constant scourge to international trade. As the authoritative voice at sea, the admiral of a boat was entrusted to secure trade and ensured that goods returned back into the flow of commerce. From this duty, a system developed to award individuals who risked life and property to recover goods in a marine peril or, in cases when the property was abandoned, to receive the property itself, or proceeds produced from its sale.16 The United States based its maritime law on the English model. The U.S. Constitution illustrates the importance of maritime commerce, which conferred on the federal courts exclusive jurisdiction over admiralty and maritime matters.17

The federal court sitting in admiralty hears claims on a case-by-case basis with vessels treated as in rem jurisdictional personality. "In rem," is a Latin phrase, literally meaning "in the thing." Under in rem jurisdiction, a court exerts its authority over the "thing," such as a shipwreck. Any person with an interest in the wreck must come forward to protect their claim or otherwise forfeit their rights to it.

With derelict and abandoned property at sea, under which historic shipwrecks fall, admiralty courts generally apply the law of salvage, which developed from the 1869 Blackwell opinion of the Supreme Court.18 The Court summarized the criteria for awarding salvage in 1874 The Clarita and The Clara case: (1) there must be marine peril, (2) that service of the salvor was performed voluntarily, and (3) that there was success in recovering the vessel or cargo.19 Rewards are determined by the amount of danger involved in the rescue, the value of the property, and the time and labor expended by the salvors. Such rewards are paid from the monies received in public action of the salvaged goods.20 If the need arises, the court can withhold or reduce compensation if the salvor is found at fault in rendering assistance, theft, fraud, or not abiding by the "Admiralty's diligence ethics".21

However, because of the nature of shipwrecks, the question of who owns legal title to a shipwreck may be a complicated one. By action of time, storms, and sediment deposits, historic shipwrecks can become forgotten pieces of debris embedded in the soil, and therefore can become, in a sense, a part of the land. In Klein v. The Unidentified, Wrecked & Abandoned Sailing Vessel, when the plaintiff took artifacts from a wreck embedded in submerged land owned and administrated by the United States Park Service, the court found that, "when the property is embedded in soil and when the owner of the land has constructive possession of the property such that property is not considered legally lost."22 Thus, when property is found embedded or affixed to the land, title of the property rest in the owner of the land.23By sovereign prerogative, the United States claims all the land beneath its territorial waters out to three miles and, thus, title and power to exercise dominion over historic wrecks for the people of this country as a whole.24 Federal title to wrecks came into contention and confusion when states, to protect their marine heritage, passed legislation claiming title for themselves.

State Jurisdiction

Many states have passed legislation that manages marine cultural property as a component of supervising their aquatic resources. Surprisingly, Colorado was the first state to pass legislation that specifically addressed abandoned and historic shipwrecks in 1963. Similarly, many of the arid states west of the Mississippi River passed legislation regarding abandoned shipwrecks in an effort to control water beds and administer their scarce water resources. In the East, where water is much more plentiful, states developed laws in the context of historic preservation legislation or in response to locations of specific wrecks.25 Florida developed legislation between 1965 and 1967, after the discovery of artifacts from the 1715 Spanish Plate fleet. Maine, Georgia, North Carolina and Texas likewise developed legislation to protect their maritime culture in the 1960's. Twenty-eight states have since enacted laws that specifically address shipwrecks.

Each state defined its jurisdiction based on the Submerged Lands Act, passed by Congress in 1953. This act transferred legal title to submerged lands and the natural resources under navigable waters extending three miles from their respective cost line from the United States to the individual states.26 The act intended to pass ownership of mineral rights to the states yet not upset the sovereignty of the federal government in admiralty matters. The delicate language used to empower the state, however, turned into the Achilles' heel for the legislation designed to protect marine cultural heritage.

Although state laws designed to protect maritime culture developed over different times and for various regional reasons, they are fairly consistent. None prohibit sport diving on shipwrecks and several states provide compensation to licensed private salvage operations. Through the issuing of permits, states could manage their resources efficiently and for the benefit of all parties. Such active participation by the state enabled professional researchers and interested sports divers to contribute a wealth of knowledge in the discovery and study of historic wrecks. Maritime cultural management also has produced an economic impact, especially among states that relied on sports and cultural enthusiasts who fancied for adventure on the sea. Such well-intended management of marine cultural property on the state level, however, came in contention with federal admiralty laws and sovereign prerogatives.

The Inevitable Conflict

The Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel case filed in the federal District Court of Southern Florida was the first case that placed state and federal ownership into conflict. Here the court found that federal admiralty law of salvage applied to abandoned wrecks in the terrestrial waters around Florida. Although the Submerged Lands Act of 1953 did pass title of submerged property to the state, it was found that this title encompassed natural resources exclusively and therefore the state did not have a valid claim to abandoned shipwrecks. The court thus determined that traditional federal salvage principles superseded Florida's statutes. The court further found that the state could not prevent someone from bringing a federal lawsuit in admiralty for salvage by invoking the Eleventh Amendment of the U.S. Constitution which bars any lawsuit brought against a state without its consent. Florida had claimed that since it owned the shipwreck, the lawsuit brought by the salvor was a suit against the state of Florida for which it had not given permission. Therefore, on constitutional grounds, the federal court should dismiss the suit.

The court in the Cobb Coin case disagreed, concluding that the lawsuit was based under federal admiralty jurisdiction and would not be barred. It also found that the federal admiralty principles could be fashioned to protect historic artifacts during the salvage process and that awarding a portion of the find to the state of Florida could protect the public interest.27 Needless to say, this solution was not favored by the state or by the archeologist community. The prospect of having cost efficiency determinations inherent in salvage operations drive recovery of marine cultural property was not thrilling.

Confusion and inconstancy arose also when the court in Massachusetts found that the state did have plausible claim to a wreck and could claim sovereign immunity (protection from lawsuits) under the Eleventh Amendment barring the salvor from seeking a reward in federal court.28 A similar conclusion of a state's claim was found in Maryland, which also bared the suit under the Eleventh Amendment.29 As shipwreck cases were brought in various federal courts around the country, published court decisions were often inconstant and conflicting.

Salvage of maritime cultural property through the traditional method of bringing suit in admiralty court for reward presented three fundamental problems. First is the time consideration. Because rewards are granted on case-by-case basis after court hearings, a delay for up to two years could elapse before a federal judge could finally review a case. With the appeals process, it could be as long as ten years before the federal system reaches a final decision. Second, as the colloquial statement tells us, "time is money." Individuals filing a claim for an award usually require a lawyer for the complex legal procedures. A counterclaim, by other individuals or government entities, along with legal fees and court costs would eventually produce a substantial bill. Finally, there was the problem of inconsistent decisions handed by judges that were based on precedent found in each separate district.30 These were the challenges to those seeking to recover The Maple Leaf.

Home Port

The Maple Leaf's Day in Court

Dr. Keith Holland and his companions share a passion for history.31 After tracing much of Florida's unique and colorful past through its many historic sites, the group wanted to find their own untouched "time capsule." Because of the substantial preservative qualities of the St. Johns River, the group decided to focus on shipwrecks that may be interred in its thick, silty bottom. After six years of extensive historical and archival research, the group was able to pinpoint the final resting-place of the Maple Leaf in 1984. Acquiring the right to explore her remains became a very different problem, but an excellent example of legal compromise.

Soon after the discovery of the ship, the group organized itself into the St. Johns Archaeological Expeditions, Inc. (SJAEI), with the intention to research, investigate, and excavate the Maple Leaf. This was a time when many professional treasure hunters were capturing the imagination (or condemnation) of the nation and court disputes over ownership of marine cultural property were on the rise. SJAEI's determined that its "sole criterion would be what was right for the Maple Leaf Project as it touched the benefit of the public."32 The professionals in SJAEI carefully weighed the guidelines of the profit-driven salvors and the archaeologist, which demands that only trained professionals conduct excavations. Since SJAEI was not obligated to the criterion of either one, they decided to take a middle ground. SJAEI organized as a for-profit corporation, which, as opposed to a non-profit entity, could be dissolved much more easily if the occasion arose. As a corporation, SJAEI could make decisions quickly regarding the growth and structure of the project based on public benefit, as well as, to preserve relics under the strict guidelines of the archaeologist, but without some of their ethical restrictions.

One of the first goals of SJAEI was to create public interest and support in the "Maple Leaf Project." SJAEI began its public campaign in a speech at the Jacksonville Historic Society's quarterly meeting on February 20, 1985. Through many public appearances, SJAEI was able to make the Maple Leaf household word in Jacksonville and drummed up a small army of volunteers and supporters needed for the "Project." To be recognized and supported from the various historical and archaeological societies, SJAEI equipped themselves with all the material and knowledge required to carry out an excavation of such a grand caliber. With a strong public support system in place, SJAEI was ready to petition for the rights to the Maple Leaf.

SJAEI faced many legal questions regarding the legal title to the Maple Leaf. Did Florida have title under Florida Statutes that claimed sovereign prerogative for all antiquities and abandoned property within state-owned land as public property?33 As an army transport, was the Maple Leaf ever abandoned by the federal government, which generally does not abandoned property?34 In addition, since the ship was leased, did the federal government have proper title to it?

By the evidential actions of the federal government, the Maple Leaf appeared to have been abandoned. On numerous occasions, the government offered for sale the remains of the Maple Leaf that no one apparently bought. In 1880, Congress past an act in which wrecks posing as navigational risk must be removed at owner's expense.35 And, after its contracted "removal', the government removed all indications of the Maple Leaf wreck from navigational charts.

Armed with questionable ownership, a well-organized archaeological group, and the power of the people, SJAEI filed the Amended Complaint in federal admiralty court in 1986. Although the federal courts were favoring the government in such cases, SJAEI believed that their evidence and professionalism would speak for itself. The complaint consisted of three counts. Count I sought to confirm title of the Maple Leaf to SJAEI and allow them full salvage of the wreck.36 Count II sought admiralty jurisdiction under 28 U.S.C. sec. 2201 and to declare the wreck abandoned by the United States Government. Count III was an injunction of relief to protect SJAEI interests as a salvager and, because of her significance, protect the Maple Leaf from violation by outside individuals through touching, mechanical devices, or exploring the wreck by electronic devices. Two agencies answered the complaint - the Government Services Administration (GSA) and the Department of the Army. Both departments claimed title on the notion that the GSA never abandons property and demanded the case proceed to trial.

Proceeding to trial would probably have been proven cataclysmic for SJAEI. A case similar to the Maple Leaf was presided in the District Court of Georgia. In Chance v. Certain Artifacts Found and Salvaged, the case involved the salvage and ownership of artifacts removed from the Civil War steamship The Nashville that sunk in the Georgia River in 1863.37 Here, though the plaintiff had good intentions for the public, as well as a love for history, the court found them liable for conducting an unsuccessful salvage and denied the plaintiff's claim for both the articles and the salvage reward. The court first determined that the ship was "embedded" in submerged property belonging to the state and, therefore, property of the state. Second, the plaintiffs, after being denied a permit by the Georgia Department of Natural Resources and given a Cease and Desist Order, continued their actions, such as digging and dredging on the wreck, and found guilty of trespassing. Finally, the plaintiffs were found to have caused a marine peril to the site when they upset the delicate equilibrium between the wreck and its environment through their slipshod excavation and conservation techniques. With this precedent, SJAEI faced a court in which the government had not yet lost a case involving title of submerged property on inland waterways.

After filing discovery procedures, the counsel for the U.S. government was impressed at the professionalism and public support of the Maple Leaf Project. It was decided that the public interests would be best served through a compromised agreement rather than forcing the abandonment issue in trial. The compromised agreement stipulated that: (1.) The United States Government would bestow SJAEI title to explore and remove artifacts from the Maple Leaf if they continued to work diligently on the site. (2.) The United State would retain certain sovereign rights and governance to the wreck. (3.) SJAEI could be assisted by the state with information and facilities. (4.) SJAEI would be allowed publication rights regarding the all information of the Maple Leaf. All finds from the wreck would be divided, with 80% of the finds going to SJAEI, 10% to the United States Government, and 10% to the State of Florida.

After receiving the official go ahead in 1989, SJAEI spent ten days of fieldwork on the wreck. The nature of the wreck and the qualities of the St. Johns River made for interesting excavation techniques. The St. Johns River is so saturated with tannic acid produced by the cypress trees that line its shore, the water has the consistent color of strong tea, with visibility of only a few inches underwater. The wreck is twenty feet underwater and is buried under five feet of packed silty mud. The excavation process involved digging a pit to the deck of the wreck, cutting a hole into the deck to reach the hold, and going into the hold and grabbing any artifact that you can feel in the pitch darkness. In the preliminary excavations from the hull of the Maple Leaf SJAEI was able to recover more than three thousand incredibly preserved objects of wood, leather, canvas, glass, ceramics, and metal. From this cursory search it was found:

  • The Maple Leaf is still fully loaded with its cargo [400 tons worth].
  • The cost of recovery in the terms of labor, vessels, field equipment, and insurance is extremely high.
  • The conservation of the material is time consuming and expensive.
  • The work environment is difficult and dangerous.38
The Maple Leaf wreck site is of such significant magnitude that it would be impractical, if not impossible, to divide the artifacts equitably among the parties in the Admiralty suit.39 Because of the cargo's integrity and unique perspective it provided on Civil War life stored in the hold of the Maple Leaf, SJAEI decided that division of the collection would seriously compromise its historical value. "In December 1989 SJAEI announced to the Center of Military History [to whom the Department of the Army assigned its ownership to] and to the Florida Division of Historical Research that it chose not to exercise its right of ownership."40 However, SJAEI insisted that the Maple Leaf Project, the Jacksonville community, and the State of Florida should benefit by making sure that some of the material could remain on exhibit at the local Museum of Science and History. This action would allow the people the whole community to enjoy its common heritage and raise awareness among them of the need to protect such resources. To assist in the preservation of the Maple Leaf the Florida legislators presented a Special Category Grant to the Museum of Science and History in 1990. The securing of public funding was a testament to SJAEI's dedication to archaeological principals. The directors of SJAEI had proved themselves to many professional archaeologists who had initially looked at the project with an untrusting eye. In 1991, the Program in Maritime History at Eastern Carolina University agreed to take the Maple Leaf as a research and training project.41 The federal government has also become more interested in the Project and committed funds for artifact conservation. "No underwater archaeological project in Florida has yet even come close to the Maple Leaf in representing a model for public and private sector cooperation, or for public benefit."42

Eye on the Horizon

The Maple Leaf as an Example?

As evident from the vast information gathered from the Maple Leaf and distributed to the public, this project is a testimony to marriage of public sector resources and private sector efficiency. It was a creative solution that incorporates the interest of common people who implemented sound archaeological practice with efficient maritime cultural management. Most importantly, the integrity of the collection being produced and maintained gives researchers a detailed view of camp life during the Civil War.

The efforts to obtain this collection, however was produced by undertaking measures that are far from common. All parties sacrificed personal interests to adapt sound cultural management practices. SJAEI took on huge expenses, most of which were assumed by private members of the expedition, to prove their commitment and capability to carry out an extensive excavation. Salvors, who often work on shoe string budgets and investors' money, cannot make the personal sacrifices to afford a full-scale excavation. Secondly, to maintain the integrity of the collection, SJAEI forfeited their personal monetary gain that they could have produced through the sell of salvaged artifacts. This practice is rarely encountered among professional salvage operators. Finally, SJAEI received funding support from the State of Florida, as well as support from the City of Jacksonville, which arranged space for storing and exhibiting artifacts at the Museum of Science and History for the enjoyment of the public. Many museums are already stretched thin to maintain their current collections. The burden of several tons of extremely sensitive artifacts would be much more than the typical museum can handle without outside financial support.

The common denominator for all these factors is money. Without funds, managing marine cultural property effectively will be impossible. However, conducting a full excavation on every tug that rived the waves of the sea is not necessary or feasible.

Legal Postscript and The Future of Marine Cultural Property

In 1987, Congress approved the Abandoned Shipwreck Act (ASA)43 in hopes of resolving the conflict between state and federal authority over shipwrecks excavation in submerged state lands. The intention of the ASA was to cure the inconsistencies in federal case law, to lighten the number of cases that have to be heard by the federal courts, and to empower the states to manage better marine cultural property within their borders. The ASA functions by divesting the federal court of exclusive admiralty and maritime jurisdiction in favor of the states in situations where "abandoned shipwrecks" are "embedded" in state's submerged lands and coral lines, or wrecks placed on the National Registry of Historic Places. It also called for states to control and to protect the some five thousand historic shipwrecks in U.S. navigable waters. Finally, the ASA provided funds to establish underwater parks and to excavate properly and display such wrecks for the benefit of the public.44 After Congress enacted the ASA, federal courts heard only a few cases involving challenges to ASA's constitutionality and the state's rights over marine cultural property.45 Placing such property in the hands of the states proved to be efficient and cost considerate.

However, salvors prefer federal jurisdiction (as time consuming and cumbers as it may be) preferring its promise of reward over state permit programs.46 It was inevitable that the ASA would be subject to a serious challenge in court. In April 1998, the Supreme Court's decision in Californian and State Lands Commission v. Deep-Sea Research, Inc. once again opened federal courts to hear salvor's suits in admiralty under the traditional rules of salvage. At the trial level, the salvors argued that the shipwreck at issue was neither "abandoned" nor "embedded" as defined by the ASA. The State of California therefore could not claim ownership, nor could the state bar a suit in federal admiralty court to decide its ownership.

On appeal, the Supreme Court limited its review to the latter issue. The Court decided that unless a state has actual possession of a shipwreck, a suit in federal admiralty is not a suit against the state and therefore is not barred by the Eleventh Amendment. Therefore, a treasure salvor who is the first to possess a shipwreck can proceed to federal court to assert its right to reward and possible ownership without fear that the case would be dismissed. Based on the particular facts of the case, the federal court would then be free to determine whether if the ASA applies or the traditional admiralty law of salvage would govern the outcome. This case, in essence, returns an incentive to salvors to locate, excavate and to come forward with their finds, while giving states an incentive to locate and claim possession to historic shipwrecks.48

The objective of the Supreme Court's ruling was to balance a public policy of preserving submerged maritime culture with ascertaining the title to property long lost on the sea and to return these items back into the flow of commerce. Though this may prove to be a boom for salvors to pick clean our nation's heritage, it is also a great opportunity for states to establish their claim on maritime culture as provided under the ASA. It is now imperative that states locate and bring into jurisdiction marine culture resources before salvage operators deprive us the knowledge, history, and excitement from what few remaining untouched wrecks that are left. States must in fact conduct surveys of their marine jurisdiction to place a stamp of ownership of significant cultural resources. Again, such a daunting task will require expense and sacrifice by state and federal entities, as well as by private individuals.

In November 1994, President Clinton signed The National Maritime Heritage Grants Act into law.49 This act is intended to coordinate both public and private programs to "redress the adverse consequences of a period of indifference during which maritime heritage of the United States has become endangered and to ensure the future preservation of the Nations maritime heritage."50 Funding for such programs was intended to come from the sale of scrapped ships owned by the United States. Because of environmental and economic concerns surrounding these ships, it is doubtful that money will be forthcoming from their sale. The spirit of the Act should not quaver! The only true way to protect the past is to educate the future. The past is not just the property of the government protected exclusively by its laws and monies. Our past lies in all of us. In Our homes; Our communities; Our states; Our Nation. And it is at such levels that we must embrace our responsibility and take action to protect it, so that Our History does not parish from the face of the earth. The battle to control the history of the seas is not over yet!

Endnotes

1 Facts concerning the sinking of the Maple Leaf and the court hearing there of are extracted from Holland, Keith V., Lee B. Manley, and James W. Tow art (Eds.) The Maple Leaf: An Extraordinary American Civil War Shipwreck. Jacksonville, Florida: Progressive Printing, Inc. 1993.; Dillin, James, "The Maple Leaf', Jacksonville Today November/December 1980, pp.20-24.; Babits, Lawrence B., "Exploring A Civil War Sidewheeler". Archaeology, September/October 1994, pp.48-50 ; and personal knowledge of the region.

2 Dillin, p.21.

3 Dillin, p.21.

4 Towart, James W., "The Maple Leaf in Historical Perspective", The Maple Leaf, p.3.

5 Towart, James W. and Col. J.V. Witt, "Maple Leaf as a Union Army Transport", The Maple Leaf, p.15.

6 Towart, James W. and Col. J.V. Witt, p. 15.

7 Dillin, p.22.

8 Material in this section extrapolated from Giesecke, Anne G., "The Abandoned Shipwreck Act: Affirming the Role of the States in Historic Preservation", Columbia--VLA Journal of Law and Arts vol.12, spring 1988, pp.379-389, except where noted.

9 Cobb Coin Co. v. Unidentified, Wrecked &Abandoned Sailing Vessel 525 F. Supp 186 (S.D. Fla. 1981). For cases involving the Atocha see Treasure Salvors, Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel 408 F. Supp. 907 (S.D. Fla. 1976); 569 F 2d. 330 (5th Cir. 1978); 640 F. 2d (5th Cir. 1981).

10 Fisher, Melvin A. "The Abandoned Shipwreck Act: The Role of Private Enterprise", Columbia-VLA Journal of Law and Arts, vol.. 12, spring 1988, p.375.

11 Miller, Robert, "Charting the Future of Historic Shipwreck Legislation in California: Application of the English Model in Salvage of Brother Jonathan", Hastings International & Comparative Law Review, vol. 17, Summer 1994, p.796.

12 "The Debate of Shipwrecks: Scientist and Explores Ponder Protection Versus Plunder", Science Digest, February 1986, from Nafziger, James A.R., "Finding the Titanic: Beginning an International Salvage of Derelict Law at Sea", Columbia-VLA Journal of Law and Arts, vol.12, spring 1988, p.340, footnote.

13 Klein V. The Unidentified, Wrecked &Abandoned Sailing Vessel 568 F.Supp. 1562 (S.D. Fla. 1983).

14 See, for example, the Board of Regents Acquisition Policy of the Smithsonian Institution, 1973.

15 Extrapolated from Moseley, lames F., "The Case of the Maple Leaf Sails into Court", The Maple Leaf, pp.167-175.

16 Giesecke, 383.

17 Article III, sec. 2

18 77 U.S. (Wall) 1 (1869)

19 90 U.S. 1(1874). When property is salvaged at sea, however, salvors have the right only to possession and that: " the owner has not been divested of title by virtue of the fact. And neither does the salvor gain title by finding it. It is the obligation to bring the salvaged property before Admiralty court . . . where the owner will be given opportunity to come and claim the property. The salvor by bringing his salvage complaint and by having the recovered property arrest by the marshal, is enable to take the necessary steps for securing his reward." Morris, 10 sec.150.

20 Giesecke, p.384.

21 Cobb Coin, 206.

22 Klein, 1511

23 36A C J.S. Finding Lost Goods 5c (1961); Quic quid plantatar is the notion that "whatever is affixed to the soil belongs to the soil"

24 U.S.C. Article IV sec. 3

25 Giesecke, p. 381.

26 43 U.S.C. sec. 1311 et seq. (1982).

27 Geisecke, p. 385.

28 Maritime Underwater Survey v. Unidentifiable, Wrecked & Abandoned Sailing affirmed 717 F. 2d 6 (1st Cir. 1983).

29 Subaqueous Exploration & Archaeology Ltd. v. The Unidentified Wrecked & Abandoned Vessel, 577 F. Supp (D. Md. 1983); Fairport International Exploration Inc. v. The Shipwrecked Vessel Known As The Captain Lawerence, 1996 A.M.C. (D.C. Mich. 1995).

30 Giesecke, p.384

31 This section extracted from Holland, Keith V., "The Long Successful Search for the Maple Leaf" The Maple Leaf, pp.127-137 and Moseley, James F. "The Case of the Maple Leaf Sails into Court", The Maple Leaf, pp. 167-175.

32 Holland p.132.

33 Florida Statutes 267.061 b. (Full Volume 1993).

34 18 U.S.C. sec. 641.

35 33 U.S.C. sec. 409.

36 St. Johns Archaeological Expedition, Inc. v. The Unidentified and Abandoned Steamship, (D.C. Middle Fla. 1986) from The Maple Leaf. appendix D, p. 177-185.

37 See note 27

38 Holland, p. 135.

39 Holland, p.135.

40 Holland, p.135.

41 Cantelas, Frank J., "Maple Leaf Wreck Site", Stem to Stern: Newsletter of East Carolina University's Program in Maritime History and Underwater Research, vol.7, 1991. pp.9-10.

42 Miller, James J. "The Sociology of a Shipwreck Project", The Maple Leaf. p.126.

43 43 U.S.C. sec. 2102, et seq.

44 Miller, p.796.

45 See Sunken Treasure, Inc. v. Unidentified, Wrecked & Abandoned Vessel, 857 F. Supp. 1129 (DC V1 1994).

46 Fisher, p. 374.

47 523 U.S. 491, 11, S. Ct. 1464 (1998).

48 Shapreau, p. 489.

49 74 U.S.C. sec. 5401 et seq.

50 74 U.S.C. sec. 5401.7