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Kent Archaeological Review extract
 

Nautical Antiquities Legislation --
A Progress Report.
by D J Blackman.

The author is a lecturer in Classics at the University of Bristol and specializes in ancient naval history. He is also a founder member of the Council for Nautical Archaeology and a member of the DTI Committee on Wrecks.

On Wednesday, 18th July, the Protection of Wrecks Bill received the Royal Assent. In early August Mr Cranley Onslow, the minister responsible in the Department of Trade and Industry, accepted the first list of four wreck sites recommended for pro- tection under the new Act.

This ended the first stage of what, we hope, will be a continuing process in the extension of the British antiquities legislation to cover areas where no protection was previously available: wrecks and wreck sites now under water (in the sea and in inland waters), wrecks and wreck sites now on land and harbour installations and other remains of land sites now under water. The Bill just passed only concerns the first of these categories: wrecks and wreck sites now below the high tide mark of tidal waters. It is only an interim measure to protect wreck sites of great historic importance while more far-reaching legislation is prepared.

The origins of the new Act may be traced back fairly directly to the cause célèbre of 1967, the finding off the Gilstone Ledges in the Scilly Isles of the wreck of the Association, followed during the next few months by considerable damage to the site and the dispersal of many of the finds after recovery. No means of protecting the wreck were available and the publicity given to this disaster helped the Committee (now Council) for Nautical Archaeology (CNA) in starting a campaign for a review of wreck law.

British wreck law is based on the Merchant Shipping Act, 1894, which was mainly concerned with protecting newly occurred wrecks and was drafted in an era before modern advances in diving techniques. The Act is administered by the Department of Trade and Industry [formerly the Board of Trade], Marine Division, and this is the reason why the DTI has been the government department principally concerned with the Protection of Wrecks Bill. Wrecks under water cannot be protected by scheduling under the Ancient Monuments Acts, since these Acts do not apply under water (nor indeed can they be used to protect wrecks now on land -- see below). Under current wreck law a salvor can negotiate a salvage contract with the present owner of the wreck, and if he has established his claim as 'salvor in possession', can defend his rights in the civil courts by serving an injunction on anyone who interferes with the wreck or his operations. (A major problem in the Association affair was that several contracts were issued by the Ministry of Defence, all non-exclusive before the site was found). The finds lifted are usually sold at auction and the salvor gets a cut of the proceeds, as agreed in the contract. If the wreck or owner cannot be identified, the finds are held by the Receiver of Wrecks for a year and a day, then must be sold by him.

The main objections to this procedure are that the salvor is not obliged to keep any records of what he finds, or where he finds it; nor need he lift any finds of little commercial value (e.g. timber and other organic remains); nor need he do any conservation of finds (though he will obviously try to conserve items he hopes can be sold); and it is difficult to prevent the dispersal of finds.

In the spring of 1970 the Government was persuaded to set up a Wreck Law Review Committee, with a DTI Chairman and representatives of the six Government departments involved and of shipping, insurance, archaeological and diving interests. Progress, however, seemed very slow until a second disaster, in the summer of 1971, highlighted the need for urgent action. The Mary, King Charles II's yacht (and the first to sail in British waters) which had been wrecked off Anglesey in 1675, was found and soon suffered considerable depredation; this time the Ministry of Defence would offer no salvage contracts at all, That autumn the DTI agreed to consider interim legislation and during the winter the outlines of a Bill were agreed and approved by Ministers. However, no government time was provided. This meant that the Bill would have to be introduced as a Private Member's Bill. In the new session which began in the autumn of 1972, Mr Ian Sproat, MP, who was highly placed in the ballot for Private Members' Bills, adopted the measure (now somewhat revised). The Bill was welcomed by Government and Opposition spokesmen and passed through all its stages in both Houses without amendment.

The new Act enables the Secretary of State for Trade and Industry to protect wreck sites in UK waters from unauthorised interference on account of their historic, archaeological or artistic importance, by designating an area round the site as a restricted area. It will be a criminal offence to tamper with such a site, dump material there or carry out diving or salvage operations there without a licence. Licences to do salvage work on such sites will only be granted to those who are considered competent and equipped to work in a manner appropriate to the importance of the wreck; it will be an offence to obstruct the work of a licensee. The Secretary of State has appointed a committee to advise him about designation of sites and granting of licences; an emergency procedure will enable rapid protection of important new discoveries. See Footnote [1] The number of sites likely to be designated is small : the initial list is of only four sites (the Mary; the Mary Rose, King Henry VIII's vice-flagship, lost in 1545 and buried in the seabed at Spithead; the Amsterdam, a Dutch East Indiaman lost in 1749 and buried in the foreshore near Hastings; and the Grace Dieu, an early 15th-century warship in the River Hamble, near Southampton) and the maximum number of sites at any one time is likely to be in the region of twenty-four. There are therefore, no grounds for claims that archaeological spoilsports are trying to shut divers off from vast areas of British waters. Nor are designations permanent for if a site has been worked thoroughly, the designation can obviously be revoked.

Two other points deserve note: first, a salvor working with a licence on a designated wreck will have in the sanctions of criminal law, increased protection against interference; second, conditions will be attached to a licence and these should ensure that adequate plans are made and finds plotted, recorded and conserved.

The Act is an interim measure -- it is a start, but only a start. It only provides protection for designated wrecks and the rights of ownership of wreck and the operation of salvage law remains unaffected. Salvage contracts will still be made for designated and undesignated wrecks and the salvor will expect a reward. This means that finds may still go for auction, at prices beyond the reach of museums, unless it is possible to arrange pre-auction sales at valuation. Auctions result in dispersal and it is important that the material from a particular wreck be kept together as far as possible; for the contents of a wreck form an ideal closed group and may be of considerable quantity and variety -- all the paraphernalia of a living community at sea. The new display in Ulster Museum of the finds from the Armada galleasse Girona shows what can be done.

The passage of this Act has highlighted, and in some ways increased two other major problems which concern British archaeology as a whole. It is desirable that wrecks of historic importance should now be scheduled and also that licences should be granted to work on at least a majority of scheduled wrecks if suitable applicants appear (for if scheduling is taken to mean permanent 'freezing' of most of the sites, the Act is likely to become very unpopular among divers: to 'freeze' some until techniques have improved, on the other hand, is desirable and would I think, be generally accepted). Now, if licences are to be granted, one condition will rightly be that there be archaeological supervision. But even if this supervision is to be carried out only on the surface, the number of archaeologists free, able and willing to do so is small and if we add the requirement that the archaeologist can dive, we are at present down to the proverbial fingers of one hand! We are here requiring something that we can barely provide even for the few expeditions working at present. If, as is likely, the pace quickens, we shall be faced with an embarrassing situation. The obvious answer is: train more archeaologist-divers. But at present no university runs major courses in nautical archaeology, either within a general archaeology course or separately. The newly-started Institute of Maritime Archaeology at St Andrews is a step in the right direction, but we need several other university archaeology or history departments to specialise in this field. Then one must ask a related question: what career prospects are there for a trained diver-archaeologist? At the moment they appear very small. There is no government money allotted under the Protection of Wrecks Act to employ full-time diver-archaeologists and no room for them in the present structure of the DOE Ancient Monuments Inspectorate. There could perhaps be a place for them in the future, in some of the new regional units for instance.

The second problem is related : another condition which must be attached to licences granted to work on scheduled wrecks is that adequate provision be made for conservation of objects lifted. Here again we are requiring something which we can barely provide. For even if, say, a licensee is willing to pay for conservation, where can it be done? Even ignoring legalistic problems about museum conservationists dealing with material not belonging to museums, how many museums in this country could cope with the sudden arrival of a large mass of tricky material, needing a lot of storage-space, conservation facilities and many hours of skilled work? The logical solution seems to be that a number of museums in the country, say 6 or 7, should have special maritime sections and conservation facilities for underwater material, and undertake all major conservation commitments, being paid in money or in kind. The latter alternative would at least help to keep wreck groups together, especially if the museum were also able to buy the rest of the material at valuation.

The National Maritime Museum at Greenwich is now developing a ship conservation unit and the national museums receive direct government aid to acquire and conserve objects (whether from underwater or from land sites). But that is not enough. An adequate network of specialist conservation laboratories for underwater material would, in England, have to include some based on major provincial museums: say Liverpool and Bristol covering the north-west and south-west and one more in the north-east, with Greenwich, as the national museum, also covering the south-east. In Liverpool and Bristol maritime museums are already planned, but the big problem here is that provincial museums are at the mercy of local authority finance. If they are to play their part, as they should, in a national network meeting a national need, they would need direct government aid.

So much, then, for the interim legislation and its implications. What of the long-term legislation? Work on this is now under way. The possibility of designation already provided should continue, but what is needed in addition is to cut through all the complications resulting from the existing law on wreck (which has barely been affected by the interim legislation). If ownership of all wrecks and their contents above a certain age were vested in the Crown, this would remove all the difficulties over determining ownership and would make it possible to keep important groups of finds together after recovery (and there would be no more problems for museums over dealing with objects in private ownership). Such a law has already been passed by a number of governments, for example, the State of Western Australia. There the responsibilities which fall on the government as a result have been fully recognized, and the Western Australia Museum staff carry out archaeological supervision of wreck sites and conservation of lifted finds.

Similar legislation in Britain would put on our government the same responsibility and we must make sure that this is recognised. There is plenty of room for discussion about the best way to operate such more fundamental legislation: a Wreck Inspectorate, perhaps, responsible to the DTI (or the DOE? or the DES?); or provision of specialists in some of the regional units now being developed in wreck-rich coastal areas; or a system based on the proposed network of maritime museums. These suggestions are not mutually exclusive.

Certain categories of sites have not been covered by the new Act and they are not likely to come within the scope of the more fundamental legislation just described. These categories are wrecks and wreck sites in inland waters; wrecks and wreck sites now on dry land; and land sites now submerged. Not even wreck sites now on dry land or surviving historic ships can at present be scheduled under the Ancient Monuments Acts, since they are classed as 'chattels' and not structures. The Graveney Boat could not have been protected by scheduling her where she lay, unless the posts in the mud around her could have been given the status of structures. The need for all types of sites to be protected has been accepted by the Government, but no promises have been made about when this will be done. How many major sites have to be destroyed first? The tragedy of the Sandwich ship highlights the inadequacy of the present Ancient Monuments Acts.

Besides this gap on the landward side, there is a vast area beyond the outer limits of the new Act. It only deals with wrecks in UK territorial waters and so, probably, will any future legislation. Large numbers of wrecks, however, must lie on the continental shelf 'beyond the limits of national jurisdiction', and they are now becoming accessible to submersibles, if not to divers. Furthermore, the deeper the wreck the more completely it is likely to be preserved, in conditions virtually free from light or oxygen. And when one goes off the continental shelf (that is, roughly, into depths greater than 200 metres), the legal situation becomes even more obscure; indeed, the definition of the outer boundary of the continental shelf is a matter for debate.

The United Nations Conference on the Law of the Sea, to be held next year in Santiago, will be dealing with questions of exploitation and sovereignty of the seabed in deep waters. It is important that provision be made in any decisions reached for international protection of archaeological sites in these depths, which are now not protected by inaccessibility.

REFERENCES

  • F M Auburn Deep sea archaeology and the law. International Journal of Nautical Archaeology 2.1 (1973), 159-62.
  • P Marsden Archaeology at sea. Antiquity 46.3 (September 1972), 198-202.
  • A Croome Charade on the Seabed. Daily Telegraph Magazine, 21st April, 1972.
  • A Croome Hidden Monuments of the Deep. Daily Telegraph, 18th May, 1973.
  • A Croome Protecting wrecks. Nature, 244 Number 5416 (17th August 1973) page 381.
  • Hansard (Commons) 2nd March, 1973, 1848-1879; 4th May, 1973, 1656-1707.
  • Hansard (Lords) 17th May, 1973, 914-36; 8th June, 1973, 306-17; 28th June, 1973, 2173-76.

NOTE:

Footnote 1.

Since this article was written the emergency procedure has been used for the first time and a designation order made 'as a matter of immediate urgency'. It came into operation two days later and concerns a historic wreck of great importance recently discovered during dredging in the Cattlewater, Plymouth. The ship appears to date from about 1520 or earlier, a period from which few remains of ships have been recovered. Return to the paragraph.
 
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