Marine Archaeology Legislation Project

Abstract

INTRODUCTION: This Part reviews in depth the genesis and the nature of the present legal framework relating to maritime archaeology in England and Wales. It also considers what advantages and difficulties have resulted from the United Kingdom's continued adherence to this structure. Annexed to this Part is a Report of a survey conducted by NAS Training of the experiences of stakeholders regarding the functioning of the designation and licensing processes under the Protection of Wrecks Act 1973. Two principal characteristics determine the legal structure for maritime archaeology in England. The first is the continued reliance on the law of salvage to govern the recovery of wreck from the sea, irrespective of its antiquity. Consequently, the corner stone of this structure is the law of salvage, with its associated legislation, principally the Merchant Shipping Act 1995, which incorporates the International Convention on Salvage 1989 into United Kingdom law. However, it has been recognised that the application of the law of salvage to archaeological material is not considered appropriate by many in the archaeological community, as this approach is contrary to the internationally recognised precautionary principle, which seeks as the first option to preserve the heritage in situ1. Consequently, a few statutory amendments to the salvage regime have been introduced to take account of the particular cultural nature of archaeological material, the desirability of preserving it in situ if possible and the importance, if recovery is necessary, of regulating that process so to preserve archaeologically significant information. However, these amendments are fairly limited in nature, being confined to limitations on the freedom to access wreck sites and initiate salvage operations. Otherwise, the rights and duties of the participants in the maritime archaeological process and the disposal of the recovered wreck material continue to be determined by the law of salvage. The second principal characteristic of the legal structure is the absence of a satisfactory mechanism for protecting archaeology which is not derived from shipwreck, since the salvage regime is not applicable to the protection and recovery of evidence relating to submerged landscapes, dwellings or other former human habitation or activity. Only one statute, the Ancient Monuments & Archaeological Areas Act 1979 enables such archaeological material to be protected and its application underwater has been very limited, never having been applied underwater to remains other than wrecks. This conservative approach to the legal regime for maritime archaeology has generated controversy and numerous documents have drawn attention to the alleged inadequacies of the present framework. To many in the archaeological community, this framework is unduly limited in scope, fails to provide adequate protection to maritime archaeology and, by continued adherence to the salvage regime, has facilitated the use of inappropriate practices relating to the excavation and disposal of artefacts. This, it is claimed, is in stark contrast to the more regulatory stance taken by some other countries, where the diving and excavation of historic wrecks is far more heavily regulated and the protection of historic shipwreck has been taken entirely outside the ambit of the salvage regime.