Sovereign Immunity? (it's in the not so fine print)

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Posted by Divebum Don on July 13, 2010 at 22:14:02:

In Reply to: letter from Dept of the NAvy posted by Robert on July 12, 2010 at 22:10:01:

...itís actually in the first line.

"does not necessarily reflect the views of the Department of the Navy or the Department of Defense.)"

If they wanted this rusting reef so bad they should have moth balled it and sent it to Suisun Bay instead scuttling it. Canít wait to sit on the Conning tower in a wetsuit and single tank. Itís not the damn Monitor, or the HunleyÖ. (no disrespect to the U/W archeologists)

Ö..Gotta go change my diaper ;~)

Semper Fi

Sovereign Immunity and the Management of United States Naval Shipwrecks
by Robert S. Neyland

(Material contained herein is made available for the purpose of peer review and discussion and does not necessarily reflect the views of the Department of the Navy or the Department of Defense.)

Confederate Property and the Doctrine of Succession
Title Lost, Transferred, or Divested
Human Remains

Over the last few years the Naval Historical Center has dealt with many policy issues involving U.S. Navy ship and aircraft wrecks and other government-owned wrecks that are entitled to sovereign immunity. This paper discusses the principle of sovereign immunity, addresses the extension of this principle to vessels of the former Government of the Confederacy, and clarifies the use of certain naval terms, which are often misunderstood, such as "commission and decommission" and "stricken." However, I should add the disclaimer that I am an underwater archaeologist, not a lawyer. Therefore, the interpretations provided here are my own personal opinions based on my brief experience with these issues and do not necessarily represent those of the Department of the Navy.
The Department of the Navy retains custody of its ship and aircraft wrecks despite the passage of time and regardless of whether they are lost in U.S., foreign, or international waters. These wrecks are not abandoned, but remain the property of the government until a specific formal action is taken to dispose of them and, thus, are immune from the law of salvage without authorization from the appropriate Navy authorities. This immunity is founded in long-existing, historic principles of maritime law. These properties are not considered "abandoned" in the Abandoned Shipwreck Act of 1987 (43 U.S. C. 2101-2106) and did not transfer to the states with adoption of the Act.
Navy custody of its wrecks is based on the property clause of the U.S. Constitution, Articles 95 and 96 of the United Nations Convention on the Law of the Sea (1982), and established principles of international maritime law. These laws establish that right, title, or ownership of federal property is not lost to the government due to the passage of time, or by neglect or inaction. Ultimately, abandonment of government-owned ships and aircraft occurs only through congressional action.
The principle law establishing ownership within United States territorial waters is the property clause of the United States Constitution, Article IV, Section 3, Clause 2, which provides that only Congress and those persons authorized by Congress can legally dispose of United States property pursuant to the appropriate regulations.
The sovereign immunity provisions of Admiralty law are well-established, founded in early principles of maritime law. In the United States, cases have supported this doctrine and established significant legal precedents in Hatteras Inc. v. the USS Hatteras, her engines, etc. in rem and the United States of America, in personam (1984 A.M.C. 1094, affd, 698 F.2d 1215, 5th Cir., [ 1982]) and U. S. v. Richard Steinmetz (763 F. Supp. 1293, 1294, [D.N. J. 199 1 ] affd, 973 F.2nd 212, [3d Cir. 19921 cert. denied, 113 S. Ct. 1578 [1993]), also known as the "Alabama bell case. " The former is the most frequently cited legal precedent supporting the government's policy. It involved a claim against the wreck of USS Hatteras and its associated artifacts by a private salvage company. The Court, citing numerous cases and well-established precedents, determined that neither the maritime nor the common law doctrine of abandonment was applicable, and stated, "It is well settled that title to property of the United States cannot be divested by negligence, delay, laches, mistake or unauthorized actions by subordinate officials." (1984 A.M.C. 1098).
Likewise, in United States v. Steinmetz, which considered ownership of the bell of CSS Alabama, the wreck of CSS Alabama was not considered abandoned by the mere passage of time. The court applied the doctrine of sovereign immunity to property formerly owned by the Government of the Confederacy and held that the United States rightfully succeeded to the property of the former. In so doing, the Court recognized that, in spite of the rhetoric used during the Civil War to describe Confederate raiders as pirates and the citizens of the rebelling states as traitors, the Union government had in its prosecution of the war dealt with the Confederacy as a sovereign nation, although an adversarial one (Poser and Varon 1995). This case also interpreted United States' ownership as unaffected by the passage of time or by failing to salvage the property.
Sovereign rights on the high seas are affirmed in Articles 95 and 96 of The Law of the Sea Convention (1982). These provide a legal basis for the sovereign immunity of sunken warships and government vessels on the high seas. Article 95 states, "Warships on the high seas have complete immunity from the jurisdiction of any state other than the flag states," and Article 96 continues, "Ships owned or operated by a state and used only on government noncommercial service shall, on the high seas have complete immunity from the jurisdiction of any state other than the flag state."
At present, there is no multilateral treaty governing the treatment of sunken warships and military aircraft (Roach 1995). In the absence of such a treaty, the governments of France, Germany, Japan, The Russian Federation, The United Kingdom, Northern Ireland, and the United States issued a joint statement in September 1995 to be used as guidance when dealing with issues related to sunken state vessels and aircraft (Department of State (DOS) 1995). States with ownership of title are referred to as the "flag states," while those states with foreign-owned sunken vessels located in their waters and subject to their jurisdiction are identified as the "coastal states. " The six nations acknowledge the property rights of the flag states over their vessels, that the sunken vessels under their jurisdiction are "historical artifacts of special importance and entitled to special protections, " and acknowledge that, "these ships and aircraft may be the last resting places of many sailors and airmen who died in the service of their nations. " It is accepted that disturbance of a ship or aircraft wreck site is a destructive process and that these sites hold a special significance for scientific discovery. Thus, any proposed recovery or excavation must provide a research design, site surveys, minimal site disturbance consistent with research requirements, adequate financial resources, preparation of professional reports, and a comprehensive conservation plan.
A coastal state does not acquire ownership of sunken warships even though the wrecks are "located on or embedded in land or the seabed over which it exercises sovereignty or jurisdiction. " The coastal state does control access to those vessels and their associated artifacts that lie within their territorial or contiguous zones. The contiguous zone can extend a maximum of 24 miles beyond the territorial sea. The 1995, joint statement allows that most governments will honor requests from the sovereign states to allow visits to their sunken vessels and aircraft. Seaward of the contiguous zone access to the submerged state vessels is subject only to flag state control.
The joint statement provides that salvage, or attempted salvage, of state vessels and their associated artifacts is prohibited, wherever located, without the express permission of the sovereign flag State. The only exception is "opposing belligerents" during the period of their conflict. In addition, vessels and aircraft containing human remains deserve special respect as war graves, are not to be disturbed, and the flag state may use all lawful means to prevent disturbance or salvage.
For United States wrecks within foreign territorial waters, this statement implies that protection or scientific investigation depends upon cooperation between the flag and coastal states. Management of CSS Alabama is one example of such international cooperation. CSS Alabama is the property of the United States, but the excavation of the site is carried out under the laws of the Republic of France (Dudley 1995).
Confederate Property and the Doctrine of Succession
CSS Alabama and approximately 320 other Confederate naval vessels represent a special category of shipwrecks entitled to sovereign immunity. Confederate naval vessels are currently placed under the Administrator of the General Services Administration (GSA), a responsibility the GSA inherited from the Treasury Department. A Joint Resolution of Congress, signed June 21, 1870, enabled the Secretary of the Treasury to collect, "any moneys, dues, and other interests lately in the possession of or due to the so-called Confederate States, or their agents, and now belonging to the United States... " (Forty-first Congress, Session 11, Res. 75, 1870). On June 2, 1965, this was incorporated into 40 U.S.C. 310 so that the Administrator of GSA is responsible for these sunken vessels.
United States ownership of Confederate property is also supported by legal precedent. The United States Supreme Court developed the doctrine of succession concerning Confederate property in an 1872 Supreme Court decision, United States, Lyon, et al v. Huckabee (83 U. S. 414 1872). In 1862, C.C. Huckabee, with three other persons, constructed an iron works in Alabama which they later sold to the Government of the Confederacy. The factory was captured by Union forces in March 1865 and in 1866 it was sold to Francis Lyon. Huckabee made a claim to regain the iron works, alleging that he and his partners were forced to sell the factory to the Confederacy. The court ruled that "Power to acquire territory either by conquest or treaty is vested by the Constitution in the United States ...." Complete conquest, by whatever mode it may be perfected, carries with it all the rights of the former government, or in other words, the conqueror, by the completion of his conquest, becomes the absolute owner of the property conquered from the enemy, nation, or state. " (83 U.S. 414 1872:435). This opinion was upheld in a number of subsequent cases. In Williams v. Bruffy (96 U.S. 176 1877:188), the Court made a similar statement, "...the Confederacy failed and in its failure its pretensions were dissipated, its armies scattered, and the whole fabric of its government broken in pieces. The very property it had amassed passed to the nation. "
Under the powers of Congress and the resolution mentioned above, the victor went about divesting itself of captured Confederate property and disposing of the wreckage of war. Prior to the 1870 resolution, the Department of the Navy took responsibility for removing and salvaging many Confederate naval vessels, blockade runners, and harbor obstructions in southern ports such as that of Charleston, South Carolina (United States Government Printing Office (USGPO) 1903:355). The principle of succession was applied to the wrecks of Confederate warships sunk during hostilities with Leathers v Salvor Wrecking etc., Co. (15 Fed. Cas. 116, No. 8164 [S.D. Miss. 1875]). This case considered the wreck of the steamboat Natchez, a vessel pressed into Confederate service and burnt and sunk during that service. In this case, the Confederate Government compensated the owner, Leathers, for his loss. The Court stated that, because the owner had been fully compensated for his loss by the Government of the Confederacy, therefore, "... whatever was left of her hull and machinery belonged to that government, and, by consequence, became the property of the United States. " (15 Fed. Cas. 116, No. 8164 1875:116). As was mentioned by the plaintiff in Steinmetz v United States, the Court did not rule on the issue whether the wreckers acting under the full authority of the federal government would have been sufficient justification by itself for the transfer of title.
In a similar vein, the United States was recognized as the successor to the Confederate government under international law. In a case concerning the Confederate warship Rappahannock, The Beactrice otherwise The Rappahannock (36 L.J. Adm. 9 1866), the British Admiralty Court recognized U.S. ownership of title, but subject to the prior owner's lien upon the vessel for the remainder of its purchase price. In another case, the former USS Harriet Lane, which was captured by the Confederate forces and later sold, was returned to United States Navy custody after negotiations with the government of Spain. (Trexler 1931:109-123)
Title Lost, Transferred, or Divested
Government title can be lost, transferred, or given up. Under the rules of international law, government vessels and aircraft can be lost by capture during battle (before sinking), such as the Russian cruiser Admiral Nakhimov, which sank one hour after being captured on May 28, 1905, by the Japanese Imperial Navy (29 Japanese Ann. Int'l L. 1986:185-187; Strati 1995:238). A second method is by international agreement or treaty, such as the Treaty of Peace with Japan, signed September 8, 1951, which provides in Chapter V, Article 14(a)2(I) that each of the Allied Powers "shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests" of Japan, "which on the first coming into force of the present Treaty were subject to its [the Allied Powers] jurisdiction" (DOS 1951). Another example is the United States' ships sunk during the Atomic Bomb test at Bikini and Kwajalein Atoll, the title to which was transferred to the Government of the Marshall Islands by international agreement in accord with Article 177 of the Compact of Free Association. Thirdly, an express act of abandonment, gift or sale by the United States Congress can divest the government's title to property, such as was done with the War of 1812 ships Hamilton and Scourge. The procedures for abandonment of sunken United States warships and aircraft located outside the territory of the United States are set forth in 40 U.S.C.&512 (1987 supplement V) and its implementing regulation 41 CFR Part 101-45 (1994).
In the case of transferring Hamilton and Scourge from the United States to the Royal Ontario Museum, the Secretary of the Navy W. Graham Claytor, Jr., used his authority under U.S. law (10 U. S. C. 73 08) and the acquiescence of the United States Congress, as is required by law, to donate the wrecks, provided that there was respectful treatment of any human remains that might be recovered. It was stipulated that the crew members' remains would be returned to the Navy and sent to the Armed Forces Institute of Pathology (Claytor 1979).
The term "capture" indicates those cases in which the act of taking control immediately transfers the full legal ownership of that which is taken. By the act of capture, a vessel in the military service of an adversary becomes the property of the captor's Government, and title is immediately vested in the captor's government. It is unnecessary to send a captured public vessel into port for adjudication nor to comply with the various formalities required when the case has to be prepared for a prize court (USGPO 1924:3 6; Smith 1959:126-127; Colombo s 1967:801). Thus, a British gunboat captured during the War of 1812 could be used immediately in the United States fleet and if sunk would belong to the United States. Examples of acquisition by capture can be found in most naval wars in which the United States has been involved, including the American Revolution, War of 1812, and the Civil War. Over the course of the Civil War, both the Confederacy and Union captured and then deployed their respective prizes as warships. As a result of World War I and World War II, the United States received a number of German and Japanese naval vessels as war prizes.
Ships subject to capture during a conflict can be placed into four categories: 1. Enemy warships, troopships, and other enemy vessels employed in the public service; 2. All ships, enemy or neutral, which take a direct part in hostilities on the enemy side; 3. "Fleet auxiliaries, " enemy or neutral, such as colliers and similar vessels, wholly engaged at the time in the direct service of the enemy or neutral, which take a direct part in hostilities on the enemy side; 4. "Fleet auxiliaries, " enemy or neutral, such as colliers and similar vessels, wholly engaged at the time in the direct service of the enemy armed forces (Smith 1959:126-127).
The terms "commissioned, " "decommissioned, " and "stricken" often create confusion, but in fact have no relevance to title. Commissioning and decommissioning a ship only refers to making a ship a command or terminating that command. A commission is the fixed period of time in which a warship, with its full complement of officers and men, is allocated to particular duties anywhere in the world. After a ship is commissioned she continues in that state until she returns to her home, or other port, to pay off, at which time her company is dispersed. At the end of a commission a ship may recommission immediately with a new complement, may remain temporarily out of commission during a major dockyard refit, or if at the end of her active life may be laid up in reserve, or pending sale, or breaking up (Kemp 1976:118). A ship without a commission still remains government property under jurisdiction of the Navy, but it is simply no longer a command. For obvious reasons, Navy small craft, such as yard vessels, never receive a commission.
The term "stricken" frequently appears in Navy records in reference to the disposition of a ship or aircraft. Some individuals have inferred abandonment from the use of this term. Although a ship may "strike its colors in battle" to signify its surrender, the term "stricken," as in the Navy records refers to removing the aircraft or ship from active duty status. Logically, the last status reported for an aircraft or ship that is lost or missing is "stricken. " A 1945 Navy memorandum lists six conditions under which "stricken" can be written into the record of an aircraft: lost or missing, damaged beyond economical repair, salvaged for essential equipment or parts, disposed of outside the United States pursuant to the policies of the Integrated Aeronautic Program, disposed of outside the United States as directed by the Commanding Naval Officer, or transferred from Navy custody (Gates 1945). More recently "stricken" is defined in OPNAV INSTRUCTION 5442.8 of April 18 1995 as "The official action that removes an aircraft from the inventory and commensurate reporting responsibilities. " (Chief of Naval Operations 1995:7). An aircraft or a vessel that is listed as "stricken" can, at a later date, be put back into active service.
There are several important reasons why continued United States government ownership of its sunken warships and aircraft is important. These are listed in the Navy's policy fact sheet Sunken Naval Vessels &Naval Aircraft Wreck Sites (Naval Historical Center 1995) and include compliance with federal preservation laws, protection of war graves, dangers to the public from ordnance and explosives, and the recognition that these wrecks represent valuable historic properties that are in the public trust.
Human Remains
Where human remains are concerned, United States Navy policy has been clear for some time: "salvors should not presume that sunken U. S. warships have been abandoned by the United States. Permission must be granted from the United States to salvage sunken U.S. warships, and as a matter of policy, the United States Government does not grant such permission with respect to ships that contain the remains of deceased servicemen... " (DOS 1986; UNESCO 1994). This is not a new policy as the Navy's involvement with USS Tecumseh illustrates. Tecumseh was lost in 1864 during the battle of Mobile Bay with 93 men on board. In 1873, Tecumseh was sold for salvage by the Department of the Treasury to James E. Slaughter of Mobile for $50 (West 1995:27). After the purchase, Slaughter let it be known that he intended to use explosives to blast the wreck into salvageable pieces to recover iron and possibly the ship's safe. In 1876, the relatives of the men lost on Tecumseh petitioned Congress to stop this salvage. Congress quickly passed Joint Resolution No. 23 on August 15, 1876 directing the Secretary of the Treasury to return the $50, with 6% interest to Slaughter and empowered the Secretary of the Navy to assume control and protection of Tecumseh. Congress stipulated that any salvage must provide for the removal and proper burial of the remains of the crew. Another example from the Civil War, concerns the remains of the crew of USS Tulip. A boiler explosion sent Tulip and most of her crew to the bottom of the Chesapeake Bay. Only a few bodies were recovered, and these were buried on shore within site of the disaster. Correspondence in Navy files dating to at least three periods in 1929, 1951, and 1967 show continued Navy concern over the remains of both the crew members buried ashore and those carried down with the ship (Ellicott 1929; Heffernan 1951; [Eller] 1969). The Navy refused a 1967 request from a diving club for salvage rights to Tulip primarily on the basis of "nondesecration of crew members entombed in sunken naval vessels. " Other considerations were ordnance still on board and damage to the historic and archaeological integrity of the site.
The refusal of permission to the salvage of Tulip shows that as early as 1967 the Navy considered such wrecks to be war graves and of historic significance. The Navy staff involved were from the Naval Historical Center and the Navy JAG, Admiralty Division. The individuals in these Navy branches foresaw the importance of sunken ships and aircraft for interpreting the history of the United States and its Navy. Today, the Navy recognizes that it has under its jurisdiction some of the most significant historical properties within the United States. Many, if not all of the Navy's sunken warships, are eligible for listing on the National Register of Historic Places, for these are reminders of the actions and events that forged the nation. These sunken vessels and aircraft also represent the courageous actions of those Americans who have earned a permanent place in United States history and are the final resting place for many who sacrificed their lives for their country. Sovereign immune status is a key concept and doctrine for all those who seek to protect a nation's naval heritage, whether U.S. or foreign, from willful destruction and wrongful taking. It is also the raison d'etre for the Navy's policy concerning its ship and aircraft wrecks.

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