Nathan Murphy | Article

On April 28, 1988, President Reagan signed the Abandoned Shipwreck Act (ASA or Act) of 1987 into law. The ASA was passed in response to congressional concern about how historic shipwrecks were managed and preserved and with a desire to streamline and clarify the law that governed those wrecks. Congress created a two-step solution: first, granting the United States title to all abandoned shipwrecks embedded in state lands or submerged under state waters and eligible for inclusion in the National Register of Historic Places; second, immediately transferring those titles to the states where the wrecks are located. By excluding vessels under its purview from admiralty claims for salvage and finds, the Act also relegated legal disputes regarding historic vessels to state courts. The ASA’s scheme significantly realigned traditional maritime law regarding historic shipwrecks, supposedly to the benefit of historic preservation.

In reality, the ASA’s benefits have been more qualified, and the Act has generated tremendous controversy among practitioners, academics, historic preservationists, and maritime claimants. Some praise the Act’s commitment to the important values of historic preservation, but others find the Act flawed, both practically and legally. This Article contends that the views of the Act’s defenders and its opponents both have merit. In contrast to many anti-ASA litigants and writers, this Article emphasizes the national importance of preserving historic shipwrecks, which can be some of the most fragile and poorly protected of our national historic treasures. However, in contrast to ASA apologists’ approach, this Article’s central argument is that the ASA represents a wholly misguided approach to preservation.

First, the Act is an unconstitutional diminution of the federal courts’ admiralty jurisdiction. Congress’s laws can neither reduce the Constitution’s grant of admiralty jurisdiction to the federal courts nor disrupt the uniformity of national maritime law, yet the ASA does both. By granting title to states and removing shipwreck cases from the federal courts, the Act essentially guarantees that historic shipwrecks will not be managed uniformly. Moreover, prohibiting both the law of finds and the law of salvage from being applied to these wrecks amounts to an unconstitutional restriction of admiralty jurisdiction. Together, these constitutional shortcomings invalidate the ASA altogether. Since the Act’s passage, some maritime law commentators have questioned the ASA’s constitutionality, but none has fully articulated a constitutional challenge to the Act, which this Article does. And although some federal courts have held the Act constitutional, recent case law from the Supreme Court of the United States has definitively undermined those holdings. Federal courts have yet to hold the Act unconstitutional, but recent developments in the law suggest it will not be long until they do.

Second, the Act is impractical. It completely abrogates the law of salvage and finds for wrecks within its purview, effectively removing any incentives professional salvors might have to search for these wrecks. Because it is often professional salvors who discover historic shipwrecks, the ASA will prevent historic treasures from coming to light in the future. The Act’s structure also encourages disparate state law treatment of shipwrecks, creating the potential for disparate protection among the states.

But nothing is lost for historic preservation. This Article is written from a solidly preservationist viewpoint and concludes that uniform, robust national protection of historic shipwrecks is both practically and constitutionally possible–the ASA was merely the wrong way to go about it. This Article proposes two statutory alternatives that alleviate both the practical and constitutional problems of the ASA. Because the main purpose of this analysis is to prove the ASA’s unconstitutionality, these proposals are necessarily sketches. The main importance of the ideas presented here is to illustrate that the current tensions between the pro- and anti-ASA camps are essentially ephemeral. Preserving historic shipwrecks is not an all-or-nothing proposal, and perceived ideological conflicts can be resolved by recognizing that although the Act is unconstitutional, the preservation of truly significant historic shipwrecks is important and can be efficiently accomplished within the bounds of the Constitution.