Art and Cultural Heritage Law, Policy, and Practice Edited by Barbara T. Hoffman . Tan. UNIVERSITY PRE J ZamanReading clockwise from the upper ef I. Magpie Gz and Witr ite a the Wateroleby Johnny Ban Blan. Mr Buln Balun well-known et ftom Amhemland. Magpie Geve and Water ile at he Waterle sa bark painting crested in 1978 lyre, Buin Belun that depicts one ofthe most important ealtoral site fo the Ganalbings peopl. The pnting was altered and coped by a teil company in 1995 Johnny Bulun Balun. Museum and Art. Galler ofthe Northern Territory Collection Licensed by VISCOPY, Australia, 2005 2. Maori hes or greenstone neck pendant. Museum of New Zealand Te Pspa Tongarewa. 3 Cyprus image | (face image, up cose). One ofthe Kankaria mosis tht was success cain by (Cypra inthe ext of AutacrphalourGrok-Orthodoe Church of Cyprus and The Repco Cpe Galery & Feld: Fine Arty, ne: Photo by Petos Peres 4 Cambodian hen. Thishead was found a the Metropolitan Museum of Artin New York, USA in March 1994. The mascum directors checked with ICOM and immediate made contac withthe Cambodian authorities who made an official request fr the return ofthe head. The Metropolitan Museum agreed to ‘return the objet in compliance wth ICOM Ce of Ethics for Museums Restitution tok place in Phnom Ponhion March 17,1997. © Mention obligatoire Ecole ranaise d'Estrem-Orint (EFEO) 5 Mayvase image: Maya limestone pane] of bllplayer fom Site Q, Late Casi, 0 to 800 A.D. The “Museum ofthe American Indian, Smithsonian Insition. © justin Kere. Thelimestone pane is one of ‘more than two dozen sculptures tha have entered this county since 1960 alleged ta have been sn off ‘monuments ata pace known to archaeologist oly a Site Q. The search fo ite Q began in the 1970eand has been suggested toe along the Usumacinta River, the border between Guatemala and Met, 65 reah Kn temple within the Anghor Wat comple in Cambodian 1992, the UNESCO Would Heritage Comite dedared the whole cy of Angkor a World Heritage Sit. Photograph courtesy of World Mounuments Pend. © World Monuments Fund Cambridge, Neve York, Melbourne, Madrid Cape Town, Singapore, Sso Paulo ‘Cambridge Unversity Press 40 Wet 20h treet, New York, NY 10011-4211, USA vm combridge.org {eformation on this: wwrw.cambridge.org/9780521857612 (© Cambridge University Press 2006 (© Introduction snd Compilation, Barbora Hoffman 2006 ‘This publication isin copyright. Subject to statutory exception and othe provisions of relevant collective licensing agreements, no reproduction of any part may tke place without ‘he wetten pecmision of Cambridge University Press Fist published 2006 Printed in the United States of America Acaalg record fortis publication ie available frm he British Library. ibrar of Congress Caaleging in Pubaton Data ‘Art and Cultural Heritage : la, policy and protic /eited by Barbora. Hofman pcm Includes bibliographical ferences ad inde. ISBN. 13:978.0521.85764-2 (hardback) ISDN-100521-85764-3(hardbac) 1 Cultural property Protection Law and legislation. I, Hofman, Barbara, Tite KS791.A97" 2005 314/09 422 2005012017 ISBN-13. 978-0521-88764-2 hardback ISBN-10. 6521-85763 hardback Cambridge University Pres has no responsibility for the persistence or accurseyof URLs for esternl or third-party Internet Wests refered to in this publeation and doesnot gurantee that any content on sich ‘Web sites so ll remain, seeurate appropriateCHAPTER FORTY Finders Keepers Losers Weepers - Myth or Reality? An Australian Perspective on Historic Shipwrecks Derek Luxford INTRODUCTION ‘Australia is the world’s largest island and smallest continent. ‘This may seem as something of an insult to the island state of Tasmania as well as the many smaller islands that lie off the Australian coast. However, the general apiness of the description should not be abandoned purely forthe sake of geographic exactitude. Asbefitsan island continent ora con- tinent of islands (big and small), Australia has a massive coastline, The Australian coastline slittered with shipwrecks. ‘There are some 6,000 to 7,000 shipwrecks along Australia's shores and in its internal waters, reflecting the history of ‘Australia's discovery and development. This exchides the no doubt countless wrecks of small craft and boats used by the aboriginal inhabitants of Australia who first arrived in the country probably some 40,000 years before European discov- ry. Unfortunately, no remains survive of pre-European dis- covery aboriginal boats or the boats of pre-European Asian explorers. In many ways, Australia was discovered almost by accident in the early seventeenth century. Dutch ships belonging to the VOC used the Roaring Forties to sail across the Indian (Ocean from the Cape of Good Hope in South Africa to the Spice Islands (modern Indonesia). Unfortunately, sometimes, they overshot their mark and rather than turning north short of the Western Australian coast and heading up to Batavia, they went too farand were wrecked on the Western Australian coast. Aswe shall sce later itwas the discovery in the twentieth century of some of the more famous ofthese wrecked Dutch ships that led the Australian Government to introduce rela- tively novel legislation to protect historic shipwrecks! Until permanent European settlement was established in Sydney in January 1788, the only ships on the Australian coast other than visiting explorers (such as Tasman in 1642 and Dampier in 1688) were shipwrecks. Of the estimated 6,000 to 7,000 * isore Shipwrecks At 1976 (Cth) (HSK. 300 shipwrecks littering the Australian coast and inland waters, ‘only some 1,800 wreck sites have been discovered. Most of those wreck sites have been discovered by accident, usually many decades after the ship was wrecked. Recreational diving rather than professional salvage has played a significant role in the discovery and subsequent exploration and recovery of relies and artefacts from those wrecks. Although Australia lacks a Titanig, a Central America, oF 1 Geldermalsen, it s not short of famous wrecks such as the Batavia (wrecked in 1629 off the Western Australian coast), the Dunbar (wrecked in 1857 off Sydney's South Head), and the more recent Centaur (an Australian hospital ship sunk bya Japanese submarine off the Queensland coast in 1943). ‘Wrecks of Australian ships have usually not involved hoards of treasure such as bullion, which has often motivated pro- fessional salvorsand wreck raisers in other parts ofthe world. ‘That is not to say that the cargoes of vessels wrecked in Australia are not of very considerable historical and archaco- logical significance. Indeed, that isthe very nature ofa cargo cof a sunken ship, whether it is treasure or something much ‘more mundane such as commercial cargo and the belongings of the crew and passengers. In this respect, ships wrecked in Australian waters share something in common with the Titanic which really cartied something for everybody inter- ested in sunken ships. ‘The balance of this chapter is di «into three sections: * a survey of the existing Australian law on historic ship- wrecks and their treasures, looking at issues such as ownership, rights to possession, wreck notification, re- strietions on wreck/treasure raising, and so forth; © an analysis on how Australian law might change if ‘Australia ratified the UNESCO Convention on the pro- tection of the Underwater Cultural Heritage (UCH); and + a brief analysis of whether there is any common ground or potential for common ground between the existing law and UCH. ‘THE CURRENT AUSTRALIAN LAW ON SHIPWRECKS AND THEIR TREASURES Australia is a common law country. Much ofits law isto be found in the judicial decision making ofthe courts, including the decisions ofthe courts interpreting legislation. Australia isa federal jurisdiction. This means that there is both feceral (Commonwealth) and state legislation and federal and state courts, As a general proposition, federal courts determine «questions involving federal legislation (such as the HSA) and the state courts determine issues arising out of state legisla- tion. Sometimes there is a degree of overlap because many disputes that come before the courts (and this includes the area of historic shipwrecks) involve questions of both federal and state laws, ach state has @ Supreme Court from which an appeal les to a Court of Appeal (sometimes called the Full Court) and‘An Australian Perspective on Historic Shipwrecks at the very top of the egal hierarchy sts the High Court of| ‘Australia the equivalent ofthe Supreme Court of the United States or the House of Lords in the United Kingdom. There is an equivalent appellate structure in the Federal Court sys- ‘tem with the High Court again being the final Court in that system, Issues of salvage and other aspects of maritime law, which can often be relevant to the issues discussed herein, can be heard either in the Federal Court or in the relevant State Supreme oust. Since the Australian Admiralty Act 1988 went into effect, the Federal Court has tended to acquire most mar- itime jurisdiction. Interestingly, and quite unlike the situation in the United States, for instance, there has been very little litigation in Australia involving competing claims to owner ship/salvage/possession of historic shipwrecks and their car- ‘goesand treasures. This may be partly because ofthe factthere hhave not been any finds of valuable treasures such as bullion in these shipwrecks, or it may, in part, be atributable to the fact that Australian legislation has given rise to a degree of ‘certainty thatthe various players in the shipwreck “business” have not wished to challenge. ‘Asa general proposition, Australia has been active in rati- fying most international conventions affecting ea transport toand from Australia and around Australia’s coasts, not only in telation to fr instance, the carriage of goods by sea (the original Hague Rules were adopted with few variations in the ‘Australian Carriage of Goods by Sea Act 1924), but also in respect of, say, Limitation of Liability Conventions, marine pollution conventions, and the major conventions dealing With the safety flifeat sea such as SOLAS and, more recently UNCLOS. Some of these maritime conventions have entered ‘Australian domestic law as schedules to the Commonwealth Navigation Act 1912, which, to some extent, was an Aus- tralian version of the British Merchant Shipping le that Australia inherited when it was British colony (or more correctly when its states were British colonies), Thus, SOLAS is Schedule I to the Navigation Act and Schedule 9 contains the International Convention on Salvage 1989. ‘Australia was a foundation signatory to UNCLOS when it ‘came into force internationally in November 1994. Impor- ‘tantly, Australia has ratified the UNESCO Convention on the Means of Prohibiting the Iicit Import, Export and Transfer of Ownership of Cultural Property 1970 and the UNESCO Convention for the Protection of the Workd Cultural and Nat- ‘ural Heritage 1972 refered to in the preamble to UCH. The Australian Government is generally regarded as an enthusi- astic supporter of UCH, having been one of the eighty-seven nations that voted to adopt UCH in November 2001. Inter- estingly, two countries with close maritime connections to Australia from the point of view of historic shipwrecks, namely the United Kingdom and the Netherlands, abstained from voting in favour of UCH in 2001. Indeed, vessels fying the flags ofthese two nations make up many ofthe larger and. ‘more famous shipwrecks around the Australian coast prior to the twentieth century. 301 ‘THE COMMON LAW OF SALVAGE AND FINDS {As a common law country, Australis has inherited the mar- ime law of salvage and finds. A crucial distinction between, entitlements of salvors and finders is that a salvor is invari- ably entitled to a monetary reward for his services (usually ‘on a no cure/no pay basis, but this is « matter of contract between the salvor and the other interested parties, includ ing the shipowner or its successor intitle), and the finder of an abandoned (and usually sunk) vessel is entitled to own- ership of that vesel and its cargo on the basis that the aban- doned vessel and cargo have become “derelict.” A derelict is a vessel that has been abandoned at sea by those in charge of it without the intention of returning to it or attempting to recover it.The relevant time of the intention is the time of leaving the vessel. A subsequent change of intention does not suffice to alter the fact that the vessel was derelict. It appears that the purpose ofthis policy involving derelict is to prevent owners who have abandoned their vessels return- ing to them after the salvor has completed its successful sal- vage and then trying to reclaim ownership. Plainly, not all shipwrecks are abandoned or derelict. A vessel does not cease to belong to its owner merely because it has sunk and/or bbecomea wreck, whether on the coast or at sa, I¢stil belongs to its owner (or the successor in title) unless itis aban- doned, The same principles apply to the cargo of wrecked vessels ‘At common lav, the finder of a derelict was allowed to keep possession and ownership of the derelict. Ths isto be contrasted with the position of salvor, who does not become the owner ofthe vessel absent an agreement with the vessels ‘ownersor suecessorsin title. The salvor may haveallien on the salved vessel and cargo enforceable in rem (a dubious benefit in relation toa wreck but possibly very valuable in relation to salvaged cargo). In reality, in the case of constructive total loss cof a vessel and cargo, the effective ownership may pass by the Jaw of subrogation to the vessels hull and machinery insurers and the cargo insurers, These issues have been litigated inthe United States in the cases referred to by Forrest in his article, such as the Central America There has been a multitude of judicial decisions in the law of salvage in common law jurisdictions such as England and the United States although there are relatively few such decisions in Australia.? ‘The distinction between salvor and finder (of derelict), however important, should not be taken to mean that the two terms are mutually exclusive. The salvor can bea salvor of