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Who owns the antiquities from the lost city of Thonis-Heracleion?

Thonis-Heracleion

For 1500 years, the ancient Egyptian city of Thonis-Heracleion stood as the one of Egypt’s most important port cities and trading centers.  Situated at a strategic point on the Egyptian Coast, Thonis-Heracleion is thought to have been the port of entry into Egypt for all ships coming from the Greek world. Established long before the founding of Alexandria in 331 BC, Thonis-Heracleion remained prosperous, until about 800 A.D., when it disappeared beneath the Mediterranean Sea.

Despite its importance in Egyptian history, Thonis-Heracleion was nearly forgotten, known only to archeologists through a few ancient texts and rare inscriptions. In the 5th century B.C, the Greek historian Herodotus wrote about Theonis-Heracleion’s great temple, where the famous hero Herakles first set foot on Egyptian land.

In 2000, archaeologist Franck Goddio and a team from the IEASM (European Institute for Underwater Archaeology), found Thonis-Heracleion and this past week, began raising major artifacts from the site.  Goddio searched for three years, having only a vague idea of where the city was located which the team gleaned from writings, suggested the city was situated near the mouth of the Canopic branch of the River Nile.

Given the time and money required to find sites such as Theron-Heracleion, one has to wonder:  who owns underwater treasure and cultural discoveries?

The Case of Theron-Heracleion

International law, international treaties, and the laws of a given country all govern ownership of cultural heritage artifacts, and are often in conflict with one another. Treaties are only followed by those who ratify them, and often, the most egregious offenders often opt out.  Many treaties also include clauses that allow ratifying countries to selectively disregard certain provisions.  There is also a push and pull between the need to protect archeological and historical sites against those that wish to profit from the sale of artifacts at those sites.  Discovering underwater cultural heritage sites takes years and can be very expensive. Only in the last fifty years has the exploration of the deep-sea become accessible due to the advances in nautical technology, such as deep-sea diving robots but the technology can cost millions of dollars.  With many Governments unwilling to pay for cultural heritage protection, discoveries are often left to private industry, which want to be rewarded for their investment.

A case in point, the discovery of Thonis-Heracleion took Franck Goddio and his team from the IEASM, three years to find the lost city,  and after 14 years, they are just beginning to excavate the larger structures. The search required custom-built technical equipment, and the development of a unique method for mapping the sea floor.  While Thonis-Heracleion lies only about 150 feet underwater, the search area encompasses 60 sq. miles. Thonis-Heracleion Interactive Map In this case, the effort showed results.  Findings to date include:

  • Thonis-Heracleion
    Interactive Map – http://www.franckgoddio.org

    The remains of more than 64 ships buried in the thick clay and sand that covers the sea bed

  • Gold coins and weights made from bronze and stone
  • Giant 16-ft statues along with hundreds of smaller statues of minor gods
  • Slabs of stone inscribed in both ancient Greek and ancient Egyptian
  • Dozens of small limestone sarcophagi believed to have once contained mummified animals
  • Over 700 ancient anchors for ships

As well, Goddio’s team helped scientists understand what may have happened to the city, which may help discover other cities that are known to be lost in the Mediterranean Sea.  Research suggests that the sinking of Thonis-Heracleion occurred due to slow processes of liquefaction and subsistence of the soil, where large amounts of ground water are extracted from soil consisting of high clay and water content.  Pressure exerted by large buildings or an overload of weight due to an unusually high flood, a tidal wave or earthquakes, can dramatically compress the soil and force the expulsion of water contained within the structure of the clay.  The clay quickly loses volume causing significant destruction. The IEASM made geological observations that brought these phenomena to light by discovering seismic effects on the underlying geology.

Goddio discovered important information about the daily life of the city’s inhabitants and the relationship Thonis-Heracleion had with other cities. The team also solved a puzzle that had baffled Egyptologists for years: that the two cities of Heracleion and Thonis were, in fact, the same city with two names; Heracleion being the name of the city for the Greeks and Thonis for the Egyptians.

In the case of Thonis-Heracleion and Goddio’s team, the discovery has gone smoothly without legal issues primarily because of the stringent rules Egypt places on its antiquities.  In Egypt, virtually all historical or cultural objects are owned by the State, and there is a total ban on exporting of any artifacts. The Egyptian government has provided exorbitant resources to manage the country’s cultural objects. The Supreme Council of Antiquities (often called SCA) is the branch of the Egyptian Ministry of Culture responsible for the conservation, protection and regulation of all antiquities and archaeological excavations in Egypt.  The Thonis-Heracleion search and excavation could not be done without the approval and funding through the SCA.  Thonis-Heracleion is within Egyptian waters, and, therefore, no artifacts from the site can be privately owned and Goddio makes to claim to the artifacts.

The 2001 Convention for the Protection of the Underwater Cultural Heritage

Unfortunately, for the remaining countries of the world, there is a minimal consensus as to how to handle cultural heritage sites, particularly those that are underwater. The United Nations Educational, Scientific and Cultural Organization (UNESCO) is at the forefront of the issue, developing the most comprehensive treaty on undersea cultural heritage protection. In 2001, UNESCO adopted the Convention for the Protection of the Underwater Cultural Heritage; however, it wasn’t ratified until 2009 after an exhaustive debate on many of the provisions.

Underwater cultural heritage can be defined as all traces of human existence that lie or have lain underwater and have a cultural or historical character. This includes three million shipwrecks such as Titanic, Belitung and the 4,000 shipwrecks of the sunken fleet of Kublai Khan. There are also sunken ruins and cities, like the remains of the Pharos of Alexandria, Egypt – one of the Seven Wonders of the Ancient World – and thousands of submerged prehistoric sites.

Cultural HeritageOne of the leading principles of the 2001 UNESCO Convention is the absolute prohibition on the recovery of the underwater cultural heritage for the purpose of making profit. Under the Convention, cultural heritage is not a commercial commodity but an outstanding cultural asset that deserves protection, not exploitation. However, that doesn’t preclude some type of reward for the discovery. The Convention also vehemently discourages unguided excavation, preferring “in situ” preservation, which basically means leave it alone until trained archaeologists can get to its excavation. Intrusive activities must be minimized and any unnecessary disturbance of human remains be avoided.

The convention also dictates certain process requirements for excavation.  Prior to any activity at a site, project designs must be submitted to competent authorities.  The plan must show that funding is at a level required to complete all stages of the project design, including conservation, curation, and publication. Projects must be managed by a qualified underwater archaeologist with proven scientific competence, and the project plan must include an environmental component that ensures the seabed and marine life are not unduly disturbed.

Archeologists see the Convention’s stringent rules as a blessing while salvage companies and many countries feel that they are too onerous.  As of May 2015, only 45 countries have ratified the UNESCO 2001 Convention; the United States, Egypt, and England are not among them. Of course, the U.S., UK and Egypt all have their laws, so it is not as if anyone can do whatever they want regarding underwater cultural significant discoveries.  As discussed earlier, Egypt probably has the most stringent laws regarding the protection of cultural antiquities.

The UK, on the other hand, doesn’t want to expend the resources required to fulfill the terms of the Convention, primarily due to the large amount of marine heritage sites that lay within its territorial waters. UNESCO estimates 5,307 wrecks, but only about 600 are deemed to require formal protection due to their age or location.  Currently, the UK has only 46 of those sites currently protected. The UK believes that is better to focus efforts and resources on protecting the most important and unique examples of underwater cultural heritage, which is why they have not ratified the 2001 UNESCO Convention.

Other countries have ratified the convention but skirt the edges of the rules.  A year after Italy joined the Convention in 2010, the Italian National Institute of Nuclear Physics melted down 120 lead ingots from a Roman wreck found off Sardinia. The lead, having been submersed in water for so long, it had approximately 100,000 times less radioactivity that traditional lead, making it ideal to shield laboratories against radiation during research into dark matter. Technically, that action violates UNESCO as commercial exploitation but since the Convention is in no way legally binding and cannot be enforced by UNESCO, there is little recourse against Italy for their infraction.

As well, there are always those that are more extreme, finding that the Convention doesn’t go far enough and that “in situ” protection is like having no protection at all.  As an example, the warship Stirling Castle, which was lost on the Goodwin Sands, Kent, in 1703, is considered the best-preserved wreck found off the UK. The site is not actively protected but protected “in situ” as it would be under the Convention, but many critics claims the site has been slowly degraded by the elements over the last 10 years. The process isn’t so much preservation as it is managed neglect.

The way in which countries manage underwater cultural heritage sites will depend on how much governments want to spend on site protection, especially given the number of sites many countries need to protect.  Undersea sites only make up a small portion of those.  In the United States, for example, sites like those in Arches National Park or Mammoth Cave National Park may be remote but are far easier to reach than those under water.  As a result, many countries refuse to ratify the Convention.

Is it is better to leave undersea sites “in situ” and deny private companies the revenue needed to join the search or, potentially discover more lost underwater sites using private enterprise. How many lost undersea cultural heritage sites will remain undiscovered without the help of commercial companies? For example, the following ships have yet to be discovered:

Antiquities
Typhoon Shakes Kublai Khan’s Fleet during Japanese Invasion

The Laws of Salvage

Private enterprise relies on the Law of Salvage or the Law of Finds, both of which are a subset of underwater cultural heritage that apply specifically to maritime vessels. Originally Law of Salvage arose as a way to encourage the voluntary assistance for ships in impending danger with the aim of rescuing life and returning the salvaged goods to the stream of commerce. In return for their successful efforts, the salvors received a monetary reward. The Law of Finds, on the other hand, regulates ownership of abandoned ships.

The rules of maritime salvage have been generally uniform across countries, but each country maintains certain idiosyncrasies endemic to their legal system. In the United States, we have a distinct body of law known as Admiralty law or maritime law, which governs maritime questions and offenses. Most admiralty and maritime claims are initiated through the Federal Courts, not state courts, and do not have jury trials.  Until recent times, payment for salvage was restricted to a reward for saving lives or property from the sea. Salvors received compensation commensurate with what they saved.

However, many salvage operations today involve large tankers and other ships with large fuel capacities where the salvage also carries with it an increased risk of oil pollution. Fearing pollution, many countries were refusing entry of salvaged vessels often leaving no alternative but to tow such ships far out into the oceans to be sunk. As such, salvors failed to receive a normal salvage award and sometimes did not even recover their expenses, which resulted in ships not assisting ships in trouble. In an attempt to overcome the problem, a new Convention was proposed, The Salvage Convention 1989, which gave monetary awards for those who employed skill and efforts to prevent or minimize damage to the environment during a salvage operation. As well, a Special Compensation was added that allowed salvors to at least recover expenses whenever there was a threat of damage to the environment. There are currently 65 signees, including the UK, U.S. and Egypt.

The Salvage Convention went a step further by implicitly including the rescue of ancient shipwrecks in its scope. However, the provisions may conflict with State laws and some of the provisions of the UNESCO Convention, so the Salvage Convention allows signees to opt-out of provisions regarding “cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed.”

This is a big win for salvors because it provides the impetus needed to recover older historical wrecks.  For salvaging a modern wreck, or an historical one, salvors only need to show that the ship was in marine peril and that the salvage attempt was successful. Peril doesn’t necessarily mean in active peril, i.e. sinking or in distress.  Peril is defined more broadly to include those wrecks at risk or degradation or loss. In court proceedings over salvage of the Lusitania, (the Lusitania was the largest passenger ship in the world when it was sunk by a German U-Boat at the start of World War 1) the Court stated, “underwater shipwrecks are usually considered in marine peril because of the risk of loss.” If known wrecks and their historical artifacts remain on the ocean bottom, they are subject to damage or loss from weather conditions as well as pirates who might destroy the sites so it by considering them in peril under the Salvage Convention, salvage operations can commence.

Antiquities
Coin from the Atocha

Unfortunately for salvors, successfully salvaging a ship and then showing that the ship was in peril is only the first step in the legal wrangling necessary to actually receive a reward.  In the United States, Salvors don’t actually receive ownership of the recovered items, but instead have a lien against the property equal to the amount of the salvage award.  They cannot just take the salvaged goods and sell them on the open market.  First, the salvage amount must be determined, which depends upon a number of factors, including the value of the property, the degree of risk involved, and the skill with which the salvage was conducted.  For salvage of historic shipwrecks, the archaeological integrity of the work performed may also be considered.  The determination and enforcement of the lien can only be done through the courts, by filing a complaint in federal court and then holding a trial to determine the amount of the award.

Therefore, making a claim under the Law of Finds, (basically a “finders keepers” law) is usually easier. The Law of Finds only requires a determination that the wreck is abandoned but that is not always easy.  For historical wrecks, the passage of time and/or the absence of attempts by the owner to recover the property are methods of proof but there are also many reasons for not being able to look for a sunken ship, including not having access to the requisite technology (consider the custom technology Goddio used to find Thonis-Heracleion). So proving abandonment is not necessarily easy.  Additionally, where a state vessel is involved, the court will generally require that the property be expressly abandoned by the owner.  The primary distinction of the Law of Finds from the Law of Salvage is salvors owns the recovered property as opposed to only having a lien against the property.

One caveat, the United States Abandoned Shipwrecked Act of 1987 gives title of all shipwrecks within U.S. waters to the United States.  U.S. territorial waters extend at least three miles from the coast line and include all the internal water bodies such as the Great Lakes. So, if the remains of a United States or a foreign government’s ship is recovered in U.S. waters, then the Law of Finds does not apply.

In one of the most famous salvage cases, the State of Florida laid claim the wreck of the Nuestra Señora de Atocha (“Our Lady of Atocha“) off the Florida Keys, which treasure hunter Mel Fischer discovered after 16 years of searching.  The Atocha was the lead vessel of a fleet of Spanish ships that sank in 1622,  carrying copper, silver, gold, tobacco, gems, jewels, jewelry, and indigo from Colombia, Panama, and Cuba, bound for Spain.  Florida forced Fisher into a salvage reimbursement contract giving 25% of the found treasure to the state. After eight years of litigation, the U.S. Supreme Court ruled in favor of Fisher.

___________

The Law of Salvage and the Law of Finds are often in conflict with provisions the 2001 UNESCO Convention and other State laws.  Who owns cultural heritage undersea antiquities depends on where they are found and which laws govern the discovery.  However, cases like the Atocha show and even darker reality; even those with a clear right to treasure or other cultural heritage items they discover usually find themselves in a long court battle with some player wishing to lay claim. Mel Fischer not only had problems with Florida, but with his investors as well. When there is significant money involved, someone will almost always try to get a piece of the action.

When Jay Miscovich and Steve Elchlepp bought a treasure map off a Key West Drifter, they found themselves with 150 pounds of pristine emeralds, and a lawsuit initiated against them by non other than Mel Fisher who claimed that the emeralds were from the Atocha and part of his salvage rights. Only last month, Kevin Dykstra and Frederick J. Monroe, two treasure hunters, announced that they found a sunken Confederate ship under Lake Michigan which may hold $2 million worth of gold bullion. After four years of exhaustive research, and significant personal investment, you can be sure that the Federal Government will invoke the Abandoned Shipwreck Act.  Rather than $2 million, Dykstra and Monroe will be lucky to get half a million, and only after an extensive legal battle that could eat up half of that in attorney’s fees.  The only certainty regarding undersea cultural heritage is that determining ownership is a messy business.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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  • Geni.com as a resource is pointing me to the understanding of world history and who owns property found. If a person can prove heritage related to goods and antiquities can an individual claim ownership? Much as Native tribes are claiming ownership of bodies found, ie… remains; Kennewick Man.

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