Florida Keys News
Sunday, March 16, 2014
Salvors cry foul over proposed regulations
Military or commercial status determines salvage rights for sunken ships

A bureaucratic battle is brewing that could pit the Navy against marine salvors looking to recover sunken vessels and Key West's legendary salvage family is among those leading the charge.

At the core of the row are proposed regulations the Navy has crafted that apply to a piece of federal legislation known as the Sunken Military Craft Act of 2004.

Critics of those proposed regulations say they would create a legal nightmare for private, commercial salvors looking to retrieve sunken vessels from the ocean floor.

What it boils down to is how the Navy would define a military vessel versus a commercial, non-military vessel, said Kim Fisher, son of Mel Fisher and owner of the family's salvage companies.

The definition of a warship could become much broader and that would limit wrecks that firms such Fisher's could salvage due to a permitting process that Fisher maintains is intentionally complicated and wrought with loopholes.

Any newly discovered colonial-era Spanish galleon -- such as the Nuestra Senora de Atocha and her sister ship the Santa Margarita that sank in 1622 west of Key West and famously discovered in the 1980s by Mel Fisher -- would likely also be classified as a military vessel under the proposed regulations, said Gene Lewis, an attorney for Fisher.

The military has long held that sunken warships are gravesites and they are not to be disturbed out of respect for the dead.

The Naval History and Heritage Command proposed the regulations and any permits for salvaging commercial vessels would have to come from them. Salvors would also have to convince the Navy that the sunken ship in question is a non-military vessel.

March 7 was the cut-off date for public comment and Fisher said though he was able to send his recommendation on deadline:

"No one in our organization or industry takes any issue with the Sunken Military Craft Act as it applies to our country's military vessels on military missions when they sank," Fisher wrote the Navy. "The Act, however, made clear that such vessels engaged in commercial activity were not to be deemed sunken military craft. The proposed regulations ignore a basic premise of the Act: The use of naval auxiliaries and other vessels that were owned or operated by the United States on a commercial mission are not subject to the Act."

Fisher also alleged the Navy did not properly advertise or alert the public to its proposals.

"If they do succeed these definitions expanded to include WWII commercial ships, it's going to make it practically impossible to salvage those vessels," Fisher said, adding that there are many commercial vessels such as Merchant Marine vessels that were commandeered by the Navy at the start of the war carrying copper and silver across the ocean.

"If the ship is carrying say copper for bullets and paying passengers, then that's a commercial venture," Fisher said, adding that such vessels should be open for companies like his to salvage.

"If it's a warship, then I agree the Navy should decide how those should be salvaged," Fisher said.

The National Oceanic and Atmospheric Administration (NOAA) also played a role in drafting the language, but its lawyer, Ole Varmer, said he could not comment on the proposed regulations.

Naval History and Heritage Command spokesman Paul Taylor offered prepared statements, but added he could not comment further on the issue.

"The Sunken Military Craft Act, enacted in 2004, reinforced the precedent that the U.S. government retains title to its sunken military craft and associated contents regardless of the passage of time, and prevents their unauthorized disturbance," Taylor wrote in an email to The Citizen. "The Act codifies in U.S. law the customary international law regarding state vessels that has been recognized by maritime nations for many decades. The Department of the Navy's sunken ship and aircraft wrecks represent a collection of more than 17,000 fragile, non-renewable sunken military craft that often serve as war graves, safeguard state secrets, carry environmental and safety hazards such as oil and ordnance, and hold significant historical value."

Such language is overly broad and would seriously hinder private salvors such as Fisher, Lewis said. Lewis and Fisher are hoping that their statements in the public comment phase will not fall on deaf ears.

"What we're trying to do is avoid court proceedings and we're hoping the voice of reason will come to bare," Lewis said, who also wants to know why it took the Navy seven years to make their proposals regarding the Sunken Military Craft Act.

To date, the Navy isn't saying much in response to the criticism.

"In order to promote controlled access to these sites, the (Sunken Military Vessel) Act provides for the (Navy) to implement a permitting program for archaeological, historical, or educational purposes," Taylor wrote. "The proposed regulations that were recently published clarify the Department of the Navy's permitting protocols for external parties wishing to disturb, injure, or remove, whether partially or fully, sunken or terrestrial military craft under its jurisdiction."

alinhardt@keysnews.com

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