SALVAGE OF SUNKEN FOREIGN WARSHIPS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00261R000300060006-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 9, 2016
• Document Release Date: October 6, 2000
• Sequence Number: 6
• Publication Date: August 21, 1970
• Content Type: MEMO

F j1(
DI"'"`ARTMENT OF THE NAVY
OFFICE' . -'.THE J_UDCE ADVOCAI E GENERAL N
Approved For R dMa +2001~O iiD*'IgrI F 81-00261 R0003000606f}&{rlv+rVER TO
JAG': 10: JRRB: lgc
21 August 1970
NAVY DECLASSIFICATION/RELEASE INSTRUCTIONS ON FILE
MEMORANDUM FOR THE FILE
Subj: Salvage of Sunken Foreigti'Warships
1. The following discussion'relates to legal aspects in connection' with
recovery of foreign warships that have not been officially abandoned by
the nations that own the ships.
2. In its simplest form, salvage can be described as a service voluntarily
rendered in relieving property from an impending peril at sea or other
navigable waters by those under no legal obligation to do so. (The Law
of Salvage, Martin J. Norris, 1958 p. 2).
3. There are a variety of acts or actions which may, either alone or in
combination, constitute a salvage service. The form which the particular
service takes is not the paramount consideration to qualify as an act of
salvage. In order to have a valid salvage claim, three elements are nec-
essary and must be present in every salvage operation. They are: (a) a
marine peril; (b) service voluntarily rendered when not required as an
existing duty or from a special contract; ?(c) success in whole or'in part,
or that the service rendered contributed to such success.1
4. The 1910 Brussels Convention on Assistance and Salvage at sea, `ex-
eludes warships and public vessels exclusively used for public service
from the right to request remuneration. U.S. law apparently does not
prohibit warships from claiming salvage money, but as between parties
to the Brussels Convention of 1910, such claims would be excluded.
5. However, the general law of salvage does not apply in the case of
warships recovered from the ocean bottom. This is due to the inherent
rights of sovereignty embodied in a ship of war. It is the consistent
position of the United States and accepted international law that sunken
warships remain the property of the flag nation until title is expressly
transferred or abandoned. Abandonment cannot be implied from the ab-
sence of any. interest overtly shown by the flag nation in locating the
wreck. It makes no difference whether the sunken warship is located
in the high seas or in the territorial waters of a foreign country.
If the wreck constitutes a hazard to navigation, the flag nation must
be consulted as to salvage. The flag nation has a right to determine
what documents, classified material, etc., should be handed over in the
event the vessel is salvaged or removed because it constitutes a hazard.
The Sabine (1879) 101 US 384, 25Led 982.
Approved For Release 2001/09/01 : CIA-RDP81-002618000300060006-1
 Mono-
6. 1110 f l agApp d Fior Re1ea 2-QQjUQ9/j0d :dGATWtB'~-q99 6' @Od30A06t0?0g-e1
salvaged if it does not constitute a hazard to 'navigation. This issue
was thoroughly examined when the wreck of the USS PEARY was supposedly
located in Darwin Ilan bar, Australia. Although at some time it was
claimed that title to the wreck had gone to the Government of Australia
as "residual asset" under' foreign liquidation agreement with that coun-
try at the end of World War II and the statement by the U.S. Navy that
the ship had been stricken from the naval vessel register and the U.S.
Navy had 'no longer any interest in it, and subsequently Australia tracis-
ferred the right to salvage to a private salvage firm, it was later
determined that title had remained in the United States in spite of all
this, since no express abandonment by the'Secretary of the Navy had been
made. The U.S. requested that permission for salvage be denied since
the U.S. Navy preferred that the wreck remain undisturbed as a place of
rest for the gallant men who went down with it. As far as is known,
the PEARY is still at the bottom of Darwin Harbor. Cases involving
other warships in the-territorial waters of foreign nations or the U.S.
have been similarly handled.
7. From time to time claims have been made that enemy warships sunk in
41
the territorial waters of a warring nation could be claimed by that nation
as war booty. This proposition was made when the salvage of sunken Japanese
ships .in the territorial water of the TTPI was at issue. Japan claimed
they still owned the ships and demanded the right to salvage them. The
U.S. which had conquered the islands during the war and wanted to salvage
these ships because they were 'hazardous to navigation, stated that it
had acquired title as war booty. This legal issue was never clearly
resolved, since the U.S. renounced all its possible rights to salvage
by implication in the agreement which finally and at long ?last settled-
all claims still outstanding in the TTPI. The U.S. has never claimed-
that German U-Boats in U.S. territorial waters were war booty.
8. As to third party nations, it has been the consistent position of the
United States Government that title remains with that government unless
some specific notification to the world of intent to abandon has been
issued. A specific country in point is the German Government, The.
United States has taken the position that unless the German Government
has taken specific action to relinquish its interests 'in its sunken
submarines the title remains in that government and thus, no authority
exists to recover the vessel without permission from that government.
This consistent position was taken as recently as January of this year
in connection with a request for salvage rights on the Civil War ship
USS NONITO . it was the opinion of the Judge Advocate General in that
instance:
"It has consistently been the position of the, Navy Department
with regard to sunken U.S. warships that abandonment cannot be
implied from the absence, even over a long periodpf time, of
Approved For Release' 2001/09/01 . CIA-RDP81-00261 R000300060006-1
 any acts evidencLng interest in su`ch wrecks.. Unuer general prin-
cip1esA4rt3V&Ar (Wel~gge Adq% 0f. 1 R- ltP81-b6M4 0O?08b6b petit
is the intention to abandon. Tlterefoi e; it is assumed that, un-
less the U.S..Government has taken specific action to relinquish
title to "M0NI10R,P' title to that ship remains in the, U.S. Covern-
ment.
9. Since the title to the warships remain with the flag state, the
right to determine the disposition of the bodies remains with it as well.
The Geneva Convention For the Ampl'ioration of the Condition of the Wounded
and Sick in Armed Forces.in,the Field of,August 12, 1949, sets forth a
policy for handling bodies in the case of armed conflict. It also applies
in an armed conflict not of an international character'. Certainly, the
criteria established for war time would be binding as a minimum in time
of peace. (See Article 3). The important articles bearing on this
subject are Articles 15, 16, and 17. They are quoted for ready refer-
ence.
ARTICLE 15
"At all times, and particularly after an engagement, Parties
to the conflict shall, without delay, take all possible measures
to search for and collect the wounded and sick, to protect them
against pillage and ill-treatment, to ensure their adequate
care, and to search for- the dead and event their befit despoiled....'"
ARTICLE 16
, . ,Parties to the Conflict shall pre are and forward to each
other through the same bure~iw certificates of death or duly authen-
ticated lists of the dead. They shall likewise collect and forward
through the same bureau one half of a double identity disc, last
wills or other documents of importance to the next of kin, money
and in general, all articles of an intrinsic or sentimental value,
which are found on the dead. These articles, together with un-
identified articles, shall be sent in sealed packets,.acconmpanied
by statements giving all particulars necessary for the identifi-
cation of the deceased owners, as well as by a complete list of
the contents of the parcel."
ARTICLE 17
"Parties to the conflict shall ensure that burial or cremation
of the dead, carried out individually as far as circumstances pertt%t,
is preceded by a careful exaumination, if possible by a medical. ex-
amination, of the bodies, with a view to confirming death, estab-
lishing identity and enabling a report to be made. One half of the
double identity disc, or the identity disc itself if it is a single
disc, should remain on the body.
Approved For Release 2001/09/01: CIA-RDP81-00261R000300060006-1
 -Bodies shall +. , be cr:.ctv ted- except for imye pe reasons Qf
hygies ltppp ov~dLfartl~el et ~d10 G#~'c -rlgip' o9p PtA~ ~~ ~ C~ in
case of cremation, the circums't'ances and'reasons for cremation
shall be stated in detail in the death certificate or on the
authenticated' list of the dead.
They shall further ensure that the dead are honourable interred
if. possible according to the rites of the rel ,
igion to which their
belonged, that their graves are respected, grouped if possible .
according to the nationality '.. of, the deceased, properly maintained
and marked so that.-they-may, always be found. For this purpose,
they shall organize at the commencement of hostilities an Official
Craves Registration Service, to allow subsequent exhumations and
to ensure the identification of bodies, whatever the site of the
graves, and the possible transportation to the home country.
These provisions shall likewise apply to the ashes, which shall
be kept by the Graves Registration Service until proper disposal
thereof in accordance with the wishes of the home country.
As soon as circumstances permit, and at latest at the end of
hostilities, these Services shall exchange, through the Information
Bureau mentioned in the second paragraph of Article 16, lists show-
ing the exact location and markings of the graves, together with
particulars of the dead interred therein." (emphasis added)
10. In summation:
(a) Title to sunken=warships including everything aboard remain in
the flag nation until express transfer or abandonment has taken plico.
Abandonment cannot be presumed by inactivity. This principle is recog-
nized in international law based on the general sovereign aspects of
the flag nation which follow its warships.
(b) The right to determine the disposition of bodies remains with
the flag state. Despoiling of the dead is a concept which generates
considerable feeling. Thus the reason for codification of procedures
which apply to handling of the dead even during war time.
Approved For Release 2001/09/01 : CIA-RDP81-002618000300060006-1