By Ole Varmer, ACUA Associate Member, and Dr. Josh Martin, Lecturer in Law, UK

The question of how to conserve Titanic was first raised shortly after its discovery by a US French team, led by Bob Ballard, in 1985. Ballard inspired legislation, enacted in 1986 that called for an international agreement and NOAA guidelines for “research, exploration, and if determined appropriate, salvage.” Before negotiations began, George Tulloch of Titanic Ventures (later RMS Titanic Inc. (RMST)) got the French co-discoverers, IFREMER, to agree to a salvage expedition on the condition that salvage would be limited to the field of artifacts outside the two large hull portions and that the artifacts would be conserved and curated together as a collection that would not be broken up and sold to private collectors. This promise was reiterated and made a condition of the award of this 1987 French Collection to RMST by the French Administrative Tribunal. RMST made this promise again to the US District Court for the Eastern District of Virginia (EDVa) when they argued why RMST should be granted exclusive rights to salvage Titanic. As noted by Tulloch, the plan of limiting salvage to the debris field and leaving the hull portions undisturbed came from the legislative history seen in the 1986 Act testimony of Ballard. For decades, the court orders were consistent with the 1986 Act, and RMST’s plan based on it, and the US negotiators of the International Agreement on Titanic were successful in getting these court orders incorporated into the Agreement consistent with RMST’s plan.

RMS Titanic. Photo Credit, NOAA library and the NOAA webpage on Titanic

Unfortunately, at the conclusion of negotiations there was a hostile takeover of RMST by shareholders who wanted to prevent the US from signing the Agreement and revise the salvage plan so they could pierce the hull and salvage remains therein. The suit against the US Dept of State and NOAA to prevent the signing of the Agreement was dismissed as moot. RMST also failed in its attempt to be awarded title under the law of finds. The 4th Circuit Court of Appeals did note that RMST was entitled to an award under the law of salvage, but also noted that the EDVa could set conditions to the award to address the public interest in Titanic. RMST decided to negotiate with the US (NOAA/DOC and DOJ) Covenants and Conditions (C&Cs) that incorporate professional international standards as reflected in the Annex Rules of the 2001 UNESCO Convention and the International Agreement concerning the Shipwrecked Vessel RMS TITANIC (Titanic Agreement).  These C&Cs survived the bankruptcy process that RMST went through, and all the five thousand artifacts salvaged are still maintained as an intact collection because RMST abandoned its efforts to sell off some of the artifacts from the French Collection during the bankruptcy process. While the salvage has been subject to controversy, it has been estimated that 95% of Titanic is still being preserved in situ as a maritime memorial to those who lost their lives that tragic night. RMST and others argue that more salvage is in the public interest because of the wreck’s rapid rate of deterioration.

Rusticles on RMS Titanic. Photo Credit, NOAA library and the NOAA webpage on Titanic

In November 2019, RMST returned to its plan to penetrate the hull and salvage artifacts, in this case the Marconi telegraph equipment. It is presently in the hull’s “silent room,” where the two wireless operators (Jack Phillips and Harold Bride) famously tapped out the final “SOS.”   Over the objections by both the US and the UK that this action is inconsistent with the Agreement on Titanic and implementing law, and historic preservation experts Dave Conlin and Paul Johnston who disagreed that recovery was in the public interest from an archaeological perspective, RMST convinced the court that “new” information about the rapid deterioration of the hull warranted a modification of its 2000 order prohibiting it from piercing the hull and salvaging remains. The EDVa said the arguments about the 2017 Act Sect. 113 requiring DOC/NOAA authorize any activity directed at Titanic “were not properly before the Court”  (May 18, 2020 Order) reasoning that the US (DOC/NOAA and DOJ) were not a formal party to this case but rather a friend of the court (Amicus) representing the public interest in Titanic as reflected in the Titanic Agreement and the 1986 Act.  So, the USG filed to intervene as a formal party seeking a declaration that the 2012 Act Sect 113 applied and requested an injunction against RMST conducting salvage without an authorization from DOC/NOAA. This was followed by a USG appeal to the 4th Circuit Court seeking its assistance in getting recognition of the application of Sect. 113 to RMST and the Titanic salvage case before the EDVa.

The 4th Circuit vacated the district court’s Orders authorizing the limited salvage exception to its standing injunction (2000 Order), prohibiting penetration of the hull and salvage therein.  The 4th Circuit Court noted that the EDVa has jurisdiction to consider RMST’s motion for modification of the 2000 injunction “after considering the United States pending motion to intervene and its argument for requiring approval under § 113.” The EDVa dismissed the US emergency motion to become a party but invited it to resubmit, noting the US remains an Amicus friend of the court. In sum, RMST has no authorization for its proposed salvage. While RMST may refile its proposal, it should wait until after it has an authorization from DOC/NOAA including sufficient funding plan to submit to the EDVa. As salvage of artifacts in the hull is prohibited under applicable international and US law, the process for recovery of the Marconi equipment or other artifacts in the hull would require an amendment to the Agreement between the US and UK or perhaps a resolution.   

RMS Titanic departing from Southampton, England. Photo Courtesy Titanic Historical Society.

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