Maritime archaeology and identification of historic shipwrecks: A legal perspective

Identifying the name of a historic shipwreck is often a primary issue that a court needs to address when deciding salvage claims over the shipwreck. Based upon case studies and doctrinal analysis, this paper explores four key issues in the identification process: the imbalance of information between salvage companies and other interested parties; standard of proof for identification; no distinction between direct and circumstantial evidence; and misidentification and correction. This paper argues that the current U.S. federal civil (admiralty) procedure law has loopholes for misidentification of shipwrecks. This paper proposes that (1) although salvage companies may hesitate to release names of shipwrecks, other interested parties can use the heightened pleading rule and broad discovery to compel salvage companies to release information on the names of shipwrecks; (2) the clear and convincing evidence standard, instead of the preponderance of the evidence standard, should be applied to identify historic shipwrecks; (3) courts should ensure ongoing public disclosure of archaeology archives regarding identities of historic shipwrecks; and (4) courts may sua sponte retain maritime archaeologists to conduct peer review of evidence regarding identities of historic shipwrecks.