Is the Titanic struggle over?

Posted on: January 28, 2020 by

Everyone knows that the wreck of RMS Titanic is special. Media reports have confirmed as much over the past week, which has seen reports about the wreck site and a bespoke international compact relating to the ill-fated vessel make headlines.

RMS Titanic departing Southampton on April 10, 1912 (Image: Public domain via Wikimedia Commons)

As media reports have confirmed, a treaty negotiated in 2003 (Agreement Concerning the Shipwrecked Vessel RMS Titanic) has been ratified by US Secretary of State, Mike Pompeo. In fact, this happened on November 18 last year when, with relatively little fanfare, the US administration deposited its acceptance with the UK government.

As such, this story is both ground-breaking and old news. In Art, Antiquity and Law volume XVI, issue 1, “A Titanic struggle”, I wrote about litigation in the US Fourth Circuit District Court as RMS Titanic, Inc (“RMST”) sought to assert its rights as salvor-in-possession. In that article, I noted that the 2003 treaty had, perhaps, paved the way for the Court’s unusual judgment which tied RMST into covenants which had in view the beneficial interest in the public in the historical, archaeological, scientific, and cultural elements of the wreck. In fact, in that article I had jumped the gun when I said that the treaty had come into force in 2007 following Congressional approval. We’ve had to wait a further 12 years for ratification by the US.

Nusrat Ghani, the UK maritime minister has hailed this agreement as “momentous”, adding that the compact means that the wreck will be “treated with the sensitivity and respect” owed to more than 1,500 souls who lost their lives.

Perhaps inevitably, since its discovery in 1985, the wreck site has become what some have called a “playground for treasure hunters and ghoulish tourists”.

As I detailed in my earlier article, salvage rights have been claimed by a number of corporate bodies, including RMST most recently, which is reported to have recovered more than 5,500 artifacts.

However, hot on the heels of this development, the Agreement looks to be set for an early test. Reports say that RMST, a subsidiary of Premier Exhibitions, plans to use underwater robots to remove a section of the deckhouse roof and recently filed a notice of intent to recover further items in a federal court in Virginia. Bretton Hunchak, president of RMST, has argued that “[w]e know that the wreck is deteriorating fast. Why should we let these artifacts disappear too? Surely we owe it to the future to protect and preserve these items, before it’s too late?”

At the time of my earlier article, I opined that the Court had taken an enlightened view and charted a middle way between private finance and public interest. Such a balancing act may have proved hard to manage in practice and Premier Exhibitions entered Chapter 11 insolvency proceedings and later reportedly sold its relics to a hedge fund consortium for US$19.5 million.

So how momentous is the 2003 Agreement? Well, in the first place we should note that there are four parties to the Agreement. Canada and France, both of which have a national and cultural interest in the wreck, were involved in negotiations but have not yet ratified the Agreement. It is thought that they plan to do so.

Secondly, the Agreement relates to future exploration and artifacts “henceforth recovered”. As such, it has no direct effect on the thousands of items which have so far been recovered.

Thirdly, as ever with international agreements, it is not clear how the provisions will be enforced. As I have set out above, RMST plans to continue its activities and it is not clear how this Agreement will bite. It is reported that RMST has argued that the Agreement has “no teeth” in US law. Time will tell how that argument plays out.

It is not also difficult to imagine that a vessel of a non-contracting party to the Agreement may seek to continue the tourist trade.

RMS Titanic (seen from the bow) – Image courtesy of: NOAA/Institute for Exploration/University of Rhode Island (Public Domain via Wikimedia Commons)

However, whilst this is not the first international agreement to relate to the custody or management of a wreck it is the first agreement of which I am aware which provides explicit protection to one particular wreck in such detail and recognises such a wreck as an international maritime memorial.

In that respect, under the provisions of the Agreement, any US or UK company must seek “project authorisation” to enter into the hull of RMS Titanic. This, officials say, is intended to prevent operators from undertaking unregulated access and what has been called “exploitative” tourism. It is said that the ship has suffered serious damage from submersibles landing on its surface.

The Agreement also puts in place a system of rules to regulate the impact of any activities in connection with the wreck. These rules are recognisably based on the good practice enshrined in the 2001 Convention on the Protection of the Underwater Cultural Heritage. The preamble to the Agreement, for example, recognises 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 artefacts from a significant threat.’

There is, therefore, much in the Agreement for the cultural heritage community to cheer, particularly since neither the US nor the UK is a States Party to the 2001 Convention. Perhaps, having crossed the Rubicon once, they may be encouraged to ratify that Convention?

The wreck of RMS Titanic, an 882.5 foot passenger ship, built by the White Star Line, rests approximately 2.5 miles deep in international waters roughly 350 nautical miles off Newfoundland, Canada. She sank in the early hours of 15 April 1912 and the wreck site was discovered by Dr Robert Ballard of the Woods Hole Oceanographic Institution in 1985.