Readers will recall the lore surrounding Titanic’s Marconi wireless operators, Jack Phillips and Harold Bride, who, it is said, famously stayed at their post sending distress messages whilst the Atlantic Ocean lapped at their feet. There has been conflicting and contradictory information about the demise of Phillips and Bride. Bride survived but it is almost certain that Phillips perished.

In January I wrote on this blog about a bespoke international compact regarding the Titanic wreck site (“Is the Titanic struggle over?“) and I flagged up reports that the agreement would face an early test arising from reports that RMS Titanic, Inc (“RMST”), a subsidiary of Premier Exhibitions, had filed a notice of intent in a federal court in Virginia relating to further recovery operations.

I have previously written about the judgment of US federal judge Rebecca Beach Smith in Art Antiquity and Law (volume XV1, issue 1, “A Titanic struggle”). I set out there how RMST sought to assert its rights as salvor-in-chief of the wreck in the US Fourth District Court.

Recent reports confirm that judge Rebecca Beach Smith has ruled that RMST may “minimally cut” into the wreck of RMS Titanic in order to retrieve the Marconi wireless telegraph machine used by Phillips and Bride to tap out distress calls. It is believed that the telegraph still sits in a deck house near the void that marks the former grand staircase.

Those reports say that court papers highlight the “…staccato bursts of information and emotion”, which

“tell the story of Titanic’s desperate fate that night: the confusion, chaos, panic, futility and fear…”.

It is understood that RMST plans to send an unmanned submersible nearly 2.5 miles to Titanic’s final resting place, where they will retrieve the radio through a skylight or rusted-through roof.

The context is important. Despite the significance of the wreck, in many ways this was a fairly standard application of US admiralty law in which the court determines the salvage rights of the salvor-in-possession. RMST sought to modify a previous order made on 28 July 2000 which prohibited them from cutting into the shipwreck or detaching any part of it. RMST relied on new evidence – expert and photographic (from 1986, 2004 and 2010) – which it is said shows increased deterioration around the Marconi suite. The July 2000 order has been modified at least twice previously.

In her ruling, judge Beach Smith accepted that the pace and location of the deterioration, combined with the historical and cultural importance of the Marconi artefacts, justified a modification of the 2000 order. She agreed that the telegraph is historically and culturally important and could soon be lost within the rapidly decaying wreck site and said that recovering the telegraph

“will contribute to the legacy left by the indelible loss of the Titanic, those who survived, and those who gave their lives in the sinking”.

The US National Oceanic and Atmospheric Administration (“NOAA”) represents the public’s interest in the wreck and – acting as amicus – opposed the recovery of the Marconi device, but as a non-party was unable to take any step to block the expedition or to force the court to consider various arguments on jurisdiction. It is reported that in court filings NOAA argued that

“the mortal remains of more than 1,500”

surround the telegraph, and should be left alone.  NOAA emphasized that there is nothing new in the fact that the wreck is deteriorating; this was known in 2000 when the original order was made.

This dilemma will be familiar to readers. It is notoriously difficult in maritime salvage cases to tread the line between the preservation of a grave site and the public interest in the recovery of culturally important artefacts.

NOAA has also reportedly argued that the expedition is banned under US federal law and under the terms of the US/UK agreement which I mentioned in my previous post. As I set out there, that agreement 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 US/UK 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.’

This judgment perhaps confirms my view that the international agreement has little teeth in terms of preventing any further artefact recovery from the wreck, though that’s not to say that the court paid no regard to the agreement. The judge had before her the text of the international agreement and confirmed that RMST’s plan meets most requirements set forth in the agreement and other restrictions. Those include justifying the expedition on scientific and cultural grounds and considering damage to the wreck.

NOAA argued that the expedition does not meet the agreement’s requirements: RMST had not, they said, provided a realistic assessment of potential damage to the wreck; and had not shown that the expedition is justified by educational, scientific, or cultural interests. Article 4 does allow recovery activity on those grounds but it is clear that the preferred management technique is in situ preservation.

The expedition is not without conditions. The judge was concerned about the lack of detail given by RMST about funding and required them to file a funding plan detailing the costs and funding sources of the recovery operation and the conservation of any recovered artefacts (RMST has, it is reported, only recently emerged from bankruptcy protection). RMST was also directed to file with the court, and to provide to NOAA, any video and/or audio recordings made during the dive, which is currently slated for August 2020. The judge also ruled that they must provide a report detailing the outcome upon completion of the dive, including listing artefacts recovered and the plan for “curation, conservation and documentation” of the recovered artefacts.

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.