Salvor in possession: friend or foe to marine archaeology

Abstract

While the threat to the underwater cultural heritage from the treasure salvage industry is widely recognised, the approach to 'protection' ranges from absolute prohibition to the sale of state licences to the highest bidder. Even the former raises difficult problems of enforceability and the choice of mechanisms to determine whether in situ preservation is the preferred option for any particular wreck site. The common law jurisdictions have tended to prefer a regulated salvage regime, in which the courts themselves have a role in considering whether appropriate archaeological methodology is applied to the recovery of historic artefacts. This article examines the legal and economic basis of such an approach and evaluates whether the underwater cultural heritage has derived any discernible benefit from this judicial creativity. Inter alia, it concludes that the legal framework is itself flawed by uncertainty and that the deliberations of the court are hampered by procedural deficiencies.