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New Zealand Engineering 1999 July Law 
Ownership of the Sea's Resources As technology improves, our ability to explore the underwater environment is increasing. In recent times, this has seen a greater interest in all manner of things on the ocean floor. The seabed offers a huge wealth of resources and, increasingly, the techniques are becoming available to exploit them. As the resources are discovered, the question that arises is: who is entitled to exploit these riches of the sea? The territorial sea surrounding New Zealand (out to 12 nautical miles from the coast) is within New Zealand’s jurisdiction and ownership. This means that the New Zealand Government can make laws governing all aspects of the sea and seabed within these waters. There is a further 12 miles of "contiguous zone" where certain jurisdictional rights apply. Outside these areas, each country has claimed a zone of up to 200 miles, within which the claiming country asserts the right to exploit the resources, but does not have legal ownership. This zone is referred to as the Exclusive Economic Zone. A coastal state’s authority does not, however, end there. Coastal states also have rights to explore and exploit the treasures of the deep seabed beyond their EEZ to the limits of the state’s continental shelf. Thus, where the continental shelf abutting a coastline can be proved by detailed mapping of the seabed to be wider than the EEZ (as in the case of New Zealand), that additional area may be able to be claimed. The UN Law of the Sea Convention gives the coastal state exclusive "sovereign rights" to explore and exploit the natural resources of the continental shelf claimed. No other nation may explore or exploit those riches without the consent of the coastal nation. The Convention applies only to "natural resources" of the continental shelf. This is defined to include seafood of sedentary or "floor-walking" species (eg. clams and crayfish) but excludes swimming types of fish. Mineral resources are also included, such as manganese nodules and petroleum. The work involved in making this claim is huge. Is it worth it? Some would claim that it is not worth the expenditure on the scientific investigations required. Others claim that the techniques for mining the seafloor and drilling beneath it are evolving all the time, and New Zealand should use the structure set up by the Convention to claim for what it can get, to allow exploitation to occur when the techniques become available. Our next article will investigate in more detail the claim New Zealand is proposing to make, and its implications. What of the resources which are not "natural resources" but may be just as valuable? Deep sea exploration has located a number of valuable or historic shipwrecks, the arguments over salvage and ownership of which exemplify the free-for-all that the Convention avoids in relation to natural resources. The saga of the Titanic’s discovery and salvage is a case in point, giving rise to court cases, allegations of theft, double-dealing and general skullduggery. In 1985 the Titanic was located lying on the deep seabed beyond the limits of national jurisdiction. The finding came after eight years of searching by Dr Robert Ballard of Woods Hole Oceanographic Institute in conjunction with INFREMER, the French National Institute of Oceanography. The vessel was located off the coast of Newfoundland, in 2.5 miles of water. According to the principle of the freedom of the seas, no country has the authority to say who can and cannot salvage a wreck or, for that matter, who owns a wreck outside their jurisdiction. To get around this, courts in most countries have developed particular rules that allow them to claim jurisdiction in certain situations. Most courts will determine salvage and ownership claims between parties who are all from that country or who agree to appear before the court. Also, in most countries, courts will determine salvage and ownership claims if a piece of the wreck is within the court’s jurisdiction. Even if jurisdiction is established, the right to salve a wreck found on the floor of the high seas will usually still be determined by the first-salvor rule. Under this rule, the salvor who first begins to salve the wreck, and can prove that they have the ability to complete the operation successfully, has priority over all other salvors as long as they maintain possession of the wreck site – like laying claim to a gold-mining claim in the Otago gold rush! This only applies to salvage rights – it does not answer the question of ownership. In most countries, the right to ownership of a wreck is governed by two broad areas of law: the law of finds and the law of salvage. If the owner is known, the law of salvage applies to award ownership to the true owner, who must, however, compensate the salvor for finding and saving their property. If the owner is not known or the wreck has been abandoned, the law of finds applies the law of the country in which the case is heard, to determine ownership. In most countries, ownership of lost or abandoned property falls to the person who first reduces that property to possession, ie. finders-keepers. Four days after discovering the Titanic, Dr Ballard and his team headed back to port. The team had contented themselves with taking more than 20,000 frames of film. In 1986 Dr Ballard returned to the site aboard the Atlantis II, with funding from the US Navy and the support of Woods Hole Oceanographic Institute, but without INFREMER. (The French organisation, apparently annoyed at the manner in which the Americans had dealt with the initial publicity surrounding the finding of the Titanic, had declined to participate). During the expedition, again nothing was taken except photos. In 1987, Titanic Ventures, a consortium of American and European investors acting with INFREMER’s help, visited the wreck site. With their submersible, Nautile, the team recovered an estimated 800 artefacts from the site. How were they able to do this without Dr Ballard’s permission? Well, according to the first-salvor rule, Dr Ballard lost his rights to the Titanic when he failed to begin salvaging the wreck or to maintain possession of the wreck site. So, when Titanic Ventures journeyed to the wreck site, they were entitled to claim the wreck as their own - at least as salvor. The question of ownership initially fell to be determined by the law of salvage. When Titanic Ventures claimed the site, it was not clear whether the Titanic had been abandoned. When the vessel sank, the ship’s owners, White Star Lines, had made a claim on the ship’s insurers. This meant that, while White Star Lines had lost any rights to the wreck, the ship’s insurers had gained a claim to the hull if it was recovered (if they wanted it!). Similarly, with respect to the Titanic’s contents, it was not clear whether the various items that had been retrieved from the wreck were still wanted by their original owners. To pre-empt this issue, Titanic Ventures began offering to return items they had retrieved from the wreck to any who could prove the items belonged to them, provided the owner compensated them for the salvage. In essence, this is what is required by the laws of salvage. The story, however, does not end here. While Titanic Ventures was busily retrieving items from the wreck a rival salvage firm from Memphis, Marex Titanic, was putting together plans for an expedition. To ensure they were able to make the expedition, they applied to a court in Virginia requesting a declaration that they were salvor-in-possession of the wreck (effectively ousting Titanic Ventures). To establish jurisdiction, Marex Titanic brought into Virginia two items retrieved from the Titanic. These items, it would later be claimed, had been stolen from Titanic Ventures during a previous expedition. At the last minute, Titanic Ventures was informed of the proceedings. They appeared before the court in Virginia to protest. Even as Marex’s salvage vessel was poised over the wreck site, it became clear that Marex would lose the case. Marex, therefore, withdrew the case, so they could leave the question of ownership open and they might go to another court elsewhere and try again. To prevent Marex or others from taking the Titanic from them, Titanic Ventures then applied to the Virginia Court for an order granting them salvor-in-possession status, and ownership rights in the ship and its contents. When no other claimants intervened, the Virginia Court granted Titanic Ventures exclusive salvor-in-possession status and, applying the law of finds, gave Titanic Ventures ownership of all items the company managed to retrieve from the wreck. Since the decision of the court granting them exclusive salvage rights, Titanic Ventures Ltd (now renamed RMS Titanic) have conducted many expeditions to the site and have retrieved over 3,600 artefacts. Titanic Ventures/RMS Titanic’s possession of the Titanic does not mean they own the wreck or artefacts, unless they are retrieved. They do not have exclusive exploitation rights either. They have lost a case with a British company in which they sought to exclude tour companies from conducting tours to the wreck. Under the terms of the order from the Virginia Court, the Titanic itself and those contents of the wreck that remain inside or on the seabed were not declared to belong to anyone. In these circumstances, it would appear that the wreck and its contents constitute lost or abandoned property (as no claimants appeared in the Virginia Court when Titanic Ventures/RMS Titanic was declared salvor-in-possession). Thus, under the law of finds, as soon as the Titanic Ventures/RMS Titanic relinquishes their salvor-in-possession status through ceasing salvage operations, the wreck will be up for grabs again! The structured approach for claiming natural resources under the UN Law of the Sea Convention is certainly an advance on the "free-for-all" applying to shipwrecks. Jeanette Watson is a senior associate and Nathan Dentice is a solicitor at law firm Rudd Watts & Stone |
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