RMS Titanic: A Legal Update 1

Introduction

Although Titanic sank 90 years ago, it remains the focal point for legal appeals and international treaty negotiations. This paper provides an overview[1] of the current court proceedings in the United States challenging a Virginia federal court's jurisdiction over artefacts recovered from the wreck. It also examines the negotiations between Canada, France, the United Kingdom and the United States that led to a draft agreement on 5 January 2000 to protect the shipwrecked vessel.

Norfolk, Virginia's federal court took jurisdiction over Titanic in 1992, and in 1994 United States district court judge the Honorable J. Calvitt Clarke, Jr. awarded sole salvage rights to RMS Titanic Inc. ("RMST"), a salvage and exhibition company. Since then, the company has filed annual progress reports with the court. RMST has recovered 6,000 artefacts in six expeditions and mounted Titanic exhibits around the world, attracting more than nine million people. As a compromise to traditional salvage law[2] because of Titanic's historical significance, Judge Clarke also ordered RMST not to sell the artefacts except as a single collection and then only to a party that would keep them on public display. Any sale would have to be approved by the court. Last month in Richmond, hearings resumed on an appeal by RMST challenging the court's jurisdiction to uphold these conditions.

The purpose of a proposed international agreement is to regulate future activities regarding the wreck of Titanic and its artefacts. The draft agreement was the culmination of three years of discussions between 1997 and 2000. At the conclusion of negotiations, delegations stated their intentions to initiate national procedures with a view to signing the agreement at the earliest opportunity. The Agreement Concerning the Shipwrecked Vessel RMS Titanic (the "Agreement") was approved over two years ago. Canada has not yet ratified it, so it remains uncertain if the agreement will ever achieve the goal of helping to protect the shipwreck.

While these two matters are mutually exclusive, they are also interconnected. The court proceedings and the international agreement are formal procedures to ensure the future integrity of the vessel. Both highlight the historical significance, global interest and genuine passion people everywhere feel about Titanic.

Background

The RMS Titanic was a British-flagged passenger and mail vessel of the White Star Line[3]. The firm was part of the International Mercantile Marine Company, an American shipping combine headed by financier J. P. Morgan. On its maiden voyage from Southampton, England to New York City, Titanic hit an iceberg and sank in the early morning hours of 15 April 1912. It went down in the international waters of the northwest Atlantic Ocean, 400 miles southeast of the then British colony of Newfoundland.[4] A total of 1,523 lives were lost out of the total complement of 2,228 souls on board. The 705 survivors were picked up by the RMS Carpathia later that day and delivered to New York.

Discovery, Salvage and Legal Proceedings in Virginia

After several unsuccessful attempts, the ship was discovered on 1 September 1985 by a joint expedition of the American-based Woods Hole Oceanographic Institution and the Institute of France for the Research and Exploration of the Sea (IFREMER). The discovery team, headed by Jean-Louis Michel and the American explorer/scientist Dr. Robert Ballard, decided not to salvage artefacts from Titanic. The following year Dr. Ballard returned to the site and placed a plaque on the wreck, urging that it be left undisturbed as a memorial.

The American Congress also passed the RMS Titanic Maritime Memorial Act[5] in 1986, directing the United States to enter into discussions with other nations to establish guidelines to protect the scientific, historical and cultural significance of the ship. The Act also stated Congress's hope that, until an international agreement could be developed to protect the site, "no person should conduct any research or exploration activity that would physically alter, disturb, or salvage the RMS Titanic."[6] The State Department contacted the United Kingdom, Canada and France, but found little interest in an international agreement at that time.

Titanic Ventures, a limited partnership, commenced salvage operations in 1987, recovering 1,800 artefacts. Later that year, the salvage business and artefacts were sold to RMST. Two rival companies, RMST and Marex Titanic Inc. ("Marex"),[7] went to court in the Eastern District of Virginia at Norfolk in 1992, claiming salvage rights and ownership of the artefacts recovered from the 1987 expedition.

In the interests of international order, the court asserted jurisdiction over Titanic. It dismissed Marex's claim, but the judgment was later reversed on a technicality. Nevertheless, Marex dropped out of sight, having never recovered any artefacts from the wreck site. In 1993, RMST recovered a further 800 artefacts and filed an action to seek exclusive salvage rights to the ship. On 27 August, the Norfolk court issued a temporary order appointing RMST custodian of the wreck, site and artefacts, pending possible claims from other parties. The following year, on 7 June 1994, the court appointed RMST salvor-in-possession and sole custodian of any artefacts recovered from the site. The court said that RMST's status as exclusive salvor is valid provided that the company remains "in possession", a condition that effectively compels RMST to mount regular (and expensive) salvage expeditions. Over 1,000 artefacts were recovered from the wreck that July.[8]

In February 1996, John A. Joslyn, an independent salvor and television producer, filed a motion in court challenging RMST's standing as exclusive salvor of Titanic. The court issued a preliminary injunction preventing him from searching, surveying, salvaging and photographing the site. In August, the court enjoined third parties from entering the site. The 1996 RMST expedition netted another 74 artefacts, but not the "Big Piece", a 20-ton slab of steel hull that RMST attempted to recover and planned to put on public display. On 23 June 1998, the court declared that RMST, as salvor-in-possession, had the right to exclude others visiting the wreck site in order to photograph it. Later that year, the company completed another expedition and added a further 70 artefacts to its collection, including the Big Piece. On 24 March 1999, the Fourth Circuit Court of Appeals in Virginia reversed the earlier ruling, saying that RMST cannot exclude others from visiting, viewing or photographing Titanic. This decision was unsuccessfully appealed to the Supreme Court by RMST.

Against this backdrop, the four-country draft agreement was endorsed in January 2000, creating rules for the management of the site and establishing in situ preservation as the preferred policy. In April, RMST sued to prevent the United States from adopting the agreement, arguing it was unconstitutional.

The company then announced plans to enter the ship itself[9] during the summer 2000 expedition to search for high-profile artefacts, including $300 million (US) in diamonds.[10] But these plans were scuttled when Judge Clarke issued an order on 28 July forbidding RMST from cutting into Titanic's hull, detaching anything or selling artefacts. Bad weather and equipment failures plagued the recovery mission. Later that year Judge Clarke dismissed the legal action brought by RMST against the American authorities for negotiating the international agreement to protect Titanic. The judge said that RMST's claims were premature, adding the company could renew its action if and when the agreement takes effect.[11]

Faced with a deepening financial crisis and shareholder unrest,[12] RMST president Arnie Geller announced plans to establish a non-profit foundation called RMS Titanic Foundation Inc. The foundation, with Mr. Geller as its president, would buy Titanic artefacts from RMST, a publicly held and for-profit company. Mr. Geller claimed that this was a viable option to put the company back on a profitable footing.

The proposal was not well received by the Norfolk federal court that has jurisdiction over the wreck. It feared the plan could be simply a sham to eliminate the court's jurisdictional oversight. "The foundation could just be a guise to acquire the artefacts and do something," Judge Clarke said to Mr. Geller at a court appearance in April 2001. "Once a foundation owns something, it is free to do a number of things, which would be dispose of the artefacts, and the foundation wouldn't be before the court."[13]

In September, RMST made the bold assertion that conditions had changed and the Norfolk court did not have jurisdiction over the shipwreck. RMST said the Geller-headed company was free to sell the artefacts to anyone, including the Geller-headed foundation. This claim did not sit well with Judges Clarke and Rebecca Beach Smith. As Judge Clarke told RMST's attorney, Mark S. Davis:

I'm going to be quite frank with you. You've got Mr. Geller as the leader of both sides of this thing and they might have very different interests."[14]

He also noted that Mr. Geller had appointed relatives, friends and business associates to the foundation's board of directors. Judge Clarke refused to give the company permission to sell the artefacts without first seeing a business plan. The court reminded RMST that one of the conditions of its originally being named sole salvor-in-possession was the company's willingness to voluntarily agree not to sell artefacts piecemeal and to keep the collection on public display. Explained Judge Smith to Mr. Geller:

You're the one who created the contingency and agreed to it in the first place. You're not going to get this court today to say, “Yes, go ahead with this deal.”[15]

The Artefacts Appeal

RMST filed a challenge to this ruling, warning the Fourth Circuit Court of Appeals in Richmond during December 2001 that it may be forced into bankruptcy or out of business if it is not permitted to sell Titanic artefacts. The company hopes to sell more than 1,000 small and unidentifiable objects to Titanic collectors and an entire travelling exhibit of 300 artefacts to an Irish museum. The remaining items would be sold to the non-profit foundation created by RMST. The cost of salvaging the artefacts is estimated at $12.7 million (US), but their value on the open market is significantly higher.[16]

In its 59-page appeal brief, RMST argued that restrictions on the sale of Titanic artefacts are contrary to maritime law and were never part of the original salvage rights order issued by Judge Clarke in 1994. RMST claimed it never promised not to sell the artefacts, but only to inform the judge of its business plans, which changed as the company's financial position changed. Nevertheless, this argument was rejected by Judge Clarke, who added that RMST had told the court five times between 1993 and 2001 that it had no interest in selling the artefacts. He said:

The court has relied on these representations by RMST in many of its orders. Most importantly, the court relied on RMST's assurances when it granted RMST salvor-in-possession status in July 1994.[17]

Oral arguments in the appeal took place on 25 February 2002. As stock in RMST has fallen dramatically,[18] the company desperately wants to sell some or all of the artefacts to recoup losses. But the Court of Appeals took a dim view of RMST's suggestion that the Norfolk court did not have jurisdiction over the sale of artefacts. It said RMST never owned the artefacts in the first place and is merely a trustee holding them on behalf of others. Furthermore, Judge Paul V. Niemeyer reiterated Judge Clarke's comments that the company must first come up with an artefacts plan acceptable to the court before proceeding further. He added:

You're not denied your reward, and shouldn't be. RMS Titanic should be rewarded, and handsomely. The question is how to do it."[19]

A ruling on the artefacts appeal is expected in two to four months.

The Draft Agreement[20]

The draft Agreement fulfils the objectives of the RMS Titanic Maritime Memorial Act. Furthermore, provided RMST complies with the international standards developed in the Agreement, its rights as exclusive salvor-in-possession should not be negatively affected, according to American government officials.

Negotiations for an international agreement to protect Titanic's remains were carried out on the understanding that, since its discovery in 1985, the wreck has been the object of exploration and 6,000 artefacts have been removed from the site.[21]

Delegations recognized RMS Titanic as a memorial to those who perished and its unique historical significance, symbolic value and international interest. They were concerned that further unregulated dives would risk disturbing human remains, and the integrity of the wreck and its remaining artifacts. An international agreement was deemed necessary to protect RMS Titanic.[22]

The Agreement's preamble repeats these points, adding the wreck is the final resting place for the 1,523 victims of the disaster.[23] The parties further endorse the relevant provisions of the 1982 United Nations Convention on the Law of the Sea, including Article 303,[24] stating that protection of Titanic is necessary for the benefit of present and future generations. They tacitly endorse Judge Clarke's conditions by explaining that the parties to the Agreement are:

Desiring that artifacts henceforth recovered from RMS Titanic be kept together and intact as project collections in a manner that can provide for public access and the curation of such project collections in perpetuity,[25]

and, furthermore,

Recognizing that in situ preservation is the most effective way to ensure such protection, unless otherwise justified by educational, scientific or cultural interests, including the need to protect the integrity of RMS Titanic and/or its artifacts from a significant threat.[26]

So they agreed to the following main points. Under Article 3 of the Agreement, each party will take all reasonable measures to ensure that all artefacts recovered from the ship that are under its jurisdiction are conserved and curated in a manner consistent with the Rules[27] attached as an annex to the Agreement and kept together and intact as project collections. Article 4 states that each party shall take the necessary measures, in respect of its nationals and flagged-vessels, to regulate through a system of project authorizations the entry into the hull sections of the ship so that they, other artefacts and any human remains are not disturbed. Further, activities aimed at the artefacts found outside the hull of the wreck[28] shall be conducted to the maximum extent possible in accordance with the Rules.

Project authorizations referred to in Article 4 involving recovery or excavation of Titanic and its artefacts are granted only when justified by educational, scientific or cultural interests, including the need to protect the integrity of the ship and its artefacts from any significant threat. As well, no party shall authorize, award or grant exclusive salvage rights to Titanic and the artefacts in its vicinity that would preclude non-intrusive public access consistent with the Agreement.[29] Each party shall also take the appropriate action with respect to its nationals and registered vessels to enforce the measures contained in the Agreement, and each shall also prohibit activities in its territory, including its maritime ports, territorial sea and offshore terminals, that are inconsistent with the Agreement.

Each party shall provide the other parties with copies of requests for authorizations for new projects made pursuant to Article 4. Each party shall also inform the other parties of the written authorizations or denials it has issued with respect to new projects. The parties shall consult with a view to harmonizing enforcement action for any activities contrary to the Agreement.

According to Article 8, if a dispute arises between two or more parties concerning the interpretation or application of the Agreement, the parties shall attempt to resolve the matter among themselves by negotiation or other peaceful means. By Article 12, any party may terminate its involvement in the Agreement by providing written notification. The termination takes effect six months after the date of receipt of notification, unless a later day is specified.

The original version of the Agreement shall be deposited with the government of the United Kingdom, and the English and French language versions shall be equally authentic when interpreting its provisions.

The Rules[30]

Rules Concerning Activities Aimed at the RMS Titanic and/or its Artifacts (the "Rules") underpin the Agreement. The Rules comprise a total of 32 sections, which essentially repeat and expand upon the provisions of the Agreement itself and generally support the ruling of the federal court in Virginia.

The General Principles of the Rules state that activities using non-destructive techniques and non-intrusive sampling are preferred to those involving recovery and excavation of Titanic. All activities should have the minimum adverse impact on the ship and its artefacts, and ensure proper recording and dissemination to the public of historical, cultural and archaeological information. Under the Funding section, the Rules say that projects shall be designed to ensure adequate funding in advance of any activity, including the curation, conservation and documentation of any recovered artefact and the preparation and dissemination of the expedition report. The Rules note:

Project funding shall not require the sale of artifacts or other material recovered or the use of any strategy that will cause artifacts and supporting documentation to be irretrievably dispersed.[31]

Projects shall only be undertaken in the presence of qualified technical and professional personnel. It is a condition precedent that team members' qualifications be provided to, and approved by, relevant national authorities before commencing any project.[32] In the Curation of Project Collection section, Rule 28 says that any artefact recovered during the course of a project and all supporting documentation shall be kept together and intact, allowing for public access, curation and its availability for educational, scientific, cultural and other public purposes. Rule 31, the Dissemination section, confirms that projects shall provide for public education and popular presentation of their results.

Ratification and Implementation Awaiting in Canada

Canada has not ratified the Agreement, which is essential for it to take effect. This means the Agreement currently has no force and effect in Canada and is technically and legally a draft treaty only.

Canada's participation in the Agreement is crucial, given its close proximity to the shipwreck. There is no indication if and when the Agreement will be ratified and ultimately implemented by the government. Nevertheless, it is certain that adoption will not happen overnight, as there are several procedural steps required before the Agreement becomes law.

Treaty making in Canada is the responsibility of the executive branch of government[33] and not Parliament. Simply signing an agreement does not generally create legally binding commitments, but merely signifies a willingness not to undermine the treaty's purpose and intent. Most international treaties enter into force after receiving a fixed number of ratifications.[34] A treaty must be implemented domestically by the time it comes into force for that state.

It is possible to implement Canada's international legal obligations through a variety of methods, including implementation through administrative processes, new legislation, new regulations or amendments to existing legislation. A treaty's terms become part of the law of Canada when they are directly incorporated into the implementing instrument. This instrument states that the treaty is given force of law and the treaty is attached as a schedule. Parliament would only consider the treaty when primary legislation is required for its implementation.[35]

Generally speaking, international obligations contained in treaties or customary law are imposed on states only and not individual citizens. Accordingly, only states are accountable for their breach. But once these international obligations become a part of domestic law, they can give rights to, and impose obligations on, individuals.[36]

Conclusion

While the Agreement has stalled, the same can hardly be said for the legal proceedings in Virginia. After a short break, RMST was back in court in February 2002 in Richmond, appealing for the right to sell the artefacts. A ruling is expected later in the year.

A ship with a noble birth and tragic ending faces an uncertain future. Since Titanic's discovery in 1985, the public's fascination with the ill-fated luxury liner has increased tremendously. The ship has also been a cash cow for some. Numerous books have been written on the subject. RMST has mounted artefact exhibitions attracting millions. There was a Broadway play called Titanic.[37] James Cameron's 1997 movie Titanic is the most financially successful film of all time. There are countless television specials and documentaries. A marriage took place at the wreck site in 2001. Titanic trinkets, posters and T-shirts abound. Even beers in Canada and the United Kingdom are capitalizing on the name.

But what of the ship itself? An international agreement to protect Titanic has not materialized. RMST is currently challenging the terms of its arrangements with the court and hopes to ultimately sell recovered artefacts.[38] Should the company be successful, such sales could effectively remove some artefacts from public view forever.[39] Some scientists claim Titanic is deteriorating at an alarming rate and may be completely disintegrated within a few years. They want artefact recovery to be accelerated. Others consider recovery operations as little more than grave robbing.

Titanic passions run high. Issues are complex and difficult to reconcile. Approaching these questions requires considerable insight, diplomacy and skill. There are no simple answers. It is a formidable undertaking to craft solutions satisfactory to all when emotions and money are involved.

Titanic's final epitaph will soon be written. It has often been said the ship is an example of early 20th century hubris. Hopefully, Titanic will also be remembered as an illustration of early 21st century vision and sensitivity.

Copyright © Gavin Murphy 2002. All Rights Reserved.