Archaeology

Painting courtesy of Robert McGreevy

The Atlantic story

Who owns an historic shipwreck?

Salvage, the Law of Finds of Crown Ownership

A Publication of Beard, Winter, Barristers and Solicitors. Edited by: RW Goodlet

Facts:

The ATLANTIC sank approximately seven miles within the Canadian side and territory of the Canada/United States International Boundary in the internal waters of Lake Erie, Ontario, off Long Point, as a result of a collision with the American steamship OGDENSBURG on August 20, 1852, at a depth of 165 feet. The ATLANTIC was American owned and built she is 267 feet in length and has a breadth of 33 feet. The ATLANTIC was uninsured.

This is a rare case where the ATLANTIC is virtually intact, unlike shipwrecks in warmer climates where the ship itself has long since disappeared and only the non-perishable cargo remains.

Three parties claimed the ATLANTIC. The firm of Beard, Winter, Barristers and Solicitors acted for Michael Fletcher, a diver from Port Dover, Ontario, who located it on September 1, 1984 and removed items, including the ship's bell, telegraph and about 500 items of the ships crockery which he delivered to the receiver of wrecks in accordance with the Canada Shipping Act and for their protection.

The Mar Dive Group from San Pedro California, came upon the ATLANTIC having knowledge of Fletcher's claim and using Fletcher's buoy to explore the site. They removed a large number of items from the ATLANTIC and took them to California and obtained a default/consent and unopposed judgment in the United States District Court, Central District of California, giving it ownership, salvage, etc. rights to the ATLANTIC. The California court issued an order permitting them to arrest the ATLANTIC.

The Ontario Government claimed ownership by reason of crown prerogative and also because the vessel was embedded in the soil in land owned by the Ontario Crown.

The court had to decide as to the ownership of the hull of the ATLANTIC and of the abandoned cargo and personal possessions on board the ATLANTIC. Mar Dive testified that a tank located on the deck of the ATLANTIC actually was an abandoned submersible diving bell or submarine built circa 1851.

In 1856, the Supreme Court of the United States ruled that the collision between the ATLANTIC and the OGDENSBURGH was a result of the equal negligence of both vessels. The majority of passengers on the ATLANTIC were immigrants mainly from Norway and Ireland on their way to Detroit for the railway which would take them to Wisconsin and points beyond.

The Atlantic was a double side-wheeled paddle steamer enrolled in the Port of Detroit in 1849.

It was the so-called arrest of the ATLANTIC by the Mar Dive Group in 1992 which confirmed to Fletcher the presence of the Mar Dive Group and their intentions which were to remove the artifacts and sell them at auctions. Fletcher's intentions were to preserve the artifacts and the vessel and to study it in an archaeological sound manner so that the citizens of both countries would be able to view the artifacts and preserve the story of the ATLANTIC.

The trial took in excess of six weeks. Michael Fletcher settled with the Ontario Government prior to trial and signed over to the Ontario Government any judgment which he would receive during the trial, including the artifacts and items which he had removed.

The Court Findings

The Mar Dive Group attempted to revive Western Wrecking Company which the newspapers in 1873 reported had acquired title to the ATLANTIC from the Ward family. The Ontario Court (Lissaman J.) found that this revivor was not done in accordance with the laws of Ohio and therefore was invalid. Furthermore, it found the newspaper article which reported the transfer of the title from Western Wrecking Company had little weight and accordingly the court would not accept such newspaper article as reliable evidence supporting the alleged sale. Furthermore, there was no registration of the sale to be located in any documentation presented from the initial owners, the ward family, to Western Wrecking Company.

The court held that the ATLANTIC had become abandoned by the Ward family following its sinking. The lawsuit between the owners of the ATLANTIC and the owners of the OGDENSBURGH in the early 1850's indicated that the ship was at a total loss and abandoned at that time and no efforts were indicated in any documents presented to show that the Ward family retained any right to the salvage. Alternatively, the court found that if it was abandoned in 1873 when the Western Wrecking Company last made an attempted salvage.

The Ontario Court also found that the California Court lacked jurisdiction to issue such a judgment against a ship located in the internal waters of Canada. Furthermore, it found that the judgment or arrangement where no argument took place based on facts. It also found that it was not a final judgment since the court in California retained jurisdiction to administer the salvage of the artifacts and the ship.

Lissaman J. also found that the Mar Dive Group placed information before the California judge indicating that the ATLANTIC was in American waters and that the Governments of Ontario and Canada were assisting them concerning the arrest and had no interest in the Atlantic. These statements were untrue.

The court also found that the ATLANTIC was abandoned when Fletcher discovered it in 1984 and that Fletcher possessed it and exerted dominion and control over it to the exclusion of the Mar Dive Group who failed to mark it for a period of two years until the so-called arrest as ordered by the California judge to give such an order.

Accordingly, Fletcher became the first finder, possessor and owner of the ATLANTIC. If there was no owner at that time, Fletcher could have no salvage rights on the ATLANTIC but presumably he would have become the owner himself under the law of finds. However, the court found that the Ontario Crown became the owner by reason of the Royal Prerogative to abandoned shipwreck located on or in Ontario property and also because the vessel was embedded in the soil of land which was owned by Ontario. Accordingly, Fletcher would have obtained salvage rights to the items which he aquired and handed over to the receiver of Wrecks but for his settlement with and the claim by the crown.

The ATLANTIC has an enormous potential value, which is located in the steamer trunks of hundreds of passengers. They are still on board and still intact. It is up to the Ontario Government now to decide what to do with the ATLANTIC - will the artifacts already retrieved by Fletcher be placed on display in a museum along with those tendered to the court by Mar Dive?

An existing court order is outstanding by Mar Dive to return many of the artifacts presently in California and elsewhere. Will the Ontario Government remove the steamer trunks and have their contents placed on display? Will any of the artifacts be sold by the Ontario Government and will their be opportunities for tourists to examine the ATLANTIC either by remote video or by properly supervised underwater inspection by sport divers and/or by use of a submersible? These questions at present remain unanswered and will have to await the outcome of the appeal recently filed by the Mar Dive Group.

The site of the ATLANTIC is presently protected by a court injunction.

The evidence indicated that the steps taken by the Mar Dive Group fell considerably short of any acceptable definition of fraud, but the California judgment could not be enforced in Ontario since it offended public policy. The court stated: "Taking all the factors into consideration, it is my view that the U.S. judgments were obtained by means of half-truths and artificiality. As such, I would have found that the U.S. judgments not ought to be recognized and enforced in this jurisdiction as they are against public policy."

This is the first decision in Canada with respect to historic shipwrecks.

The ATLANTIC has been well preserved over the years, in the same location, by a covering of silt up to its decks. It is sitting upright in cold water and the recent infestation of zebra mussels in the Great Lakes has made the vessel clearly visible.

Court Ruling & Next Steps

Port Dover Maple Leaf Wednesday, May 27, 1998

Court rules province owns steamer Fletcher wants "Atlantic" artifacts in local museum

The next step in the saga of the 5.5. Atlantic is about to begin.

The judge's ruling late in 1997 gave ownership of the sunken steamer to the Ontario Government, but an appeal filed by the American company Mar-Dive Corp. has kept the matter before the courts in an "on hold" position. The courts ruled recently that the time has lapsed for Mar-Dive to complete its appeal process, so the judge's ruling as written 18 months ago now stands.

The Americans can take their appeal to the Supreme Court.

Port Dover diver Mike Fletcher told a press conference Tuesday morning that in light of the judge's ruling he is hopeful that the 600 artifacts removed from the 1852 shipwreck will now be displayed in a public place. He has been aboard the Atlantic numerous times since 1987, bringing to the surface about 500 artifacts which were all videotaped, recorded and presented to federal government authorities. MarDive turned over to Canadian authorities about 100 artifacts which its divers had removed from the ship.

Mike Fletcher hopes to have some influence on what becomes of the Atlantic's treasure trove of items brought to the surface from their resting-place in 160 feet of water off Long Point. The Port Doverite understands that the Ontario Government liked what he told the court in 1997 about exhibits. Government representatives have indicated it plans to follow that path. That is, to have them for public display. Initially on view in several locations until a single "Atlantic Museum" can be organized. Mr. Fletcher has already spoken to Curator Bill Yeager about exhibiting many of them in Simcoe 's Eva Brook Donly Museum in the near future.

Mike Fletcher delivered a lot of data to the office of MPP Toby Barrett on Friday. The diver expects Ontario Government authorities will examine the material and decide the future of the artifacts. That will probably take months. "Since the Atlantic is in waters off Haldimand-Norfolk Region's shores I think regional council should have some say in what happens to them," Fletcher told The Maple Leaf.

He would like to see local people involved in decision-making concerning the future of the Atlantic's treasures. "We want to demonstrate to the Ontario Government that we (local citizens) can make best use of the items removed from the sunken steamer, "Fletcher stated. And he would like to be involved in that decision- making, suggesting "I think I have a lot to contribute as I want to see that it is done right."

Mike Fletcher wants to be a part of the development of an Atlantic museum. He believes many groups and individuals will also have to be involved. He favours the exhibits and museum be done through the private sector and not just government.

"One of the first things I want to see happen," Mike reported "is their release from government storage in Prescott. Then make sure nothing is deteriorating and that they are safe."

"I am really pleased it turned out as it has," Mike Fletcher told Tuesday's press conference.

At Tuesday morning's press conference Mike Fletcher released the locations of several other shipwrecks he was aware of, which are known to him only. "These shipwrecks have never been viewed by the public," the Port Dover diver stated.

This butter set with matching lid has the Atlantic picture and name on it. The loonie coin beside it gives an idea of the size.

Push is to Bring Artifacts Home

By MARGARET LAND

Port Dover - The shipwreck Atlantic's artifacts could be coming home.

Norfolk MPP Toby Barrett said he has been informed by staff with the Ministry of Citizenship, Culture and Recreation that have been taken to retrieve about 600 artifacts taken from the shipwreck and currently being held by the federal government.

The Ontario government has begun to recover these," he said from his office in Toronto.

He added it's hoped the artifacts, which include china from the luxury steamship and its bell, will be displayed in the Haldimand-Norfolk area for all to see.

"I'm pressing for sooner than later. It's pretty well cut and dried now."

The artifacts were originally brought to the surface by Port Dover area diver Mike Fletcher and members of the California based salvage company, Mar Dive, in the late 1980s and early 1990s before a court battle over ownership of the wreck halted all diving at the site. All artifacts were also seized.

Ultimately, it was decided ownership of the Atlantic rested with the province and an appeal bid by Mar Dive recently ran out of steam, leaving the federal government with no hold on the articles.

Last week, Fletcher held a press conference urging the feds to release the artifacts to the province and, ultimately, the region.

Barrett said he has talked with Fletcher about having the artifacts housed in Haldimand-Norfolk and has forwarded a plan, penned by Fletcher and other Atlantic enthusiasts, for the future of the articles on to the provincial culture ministry.

"I certainly concur with Mike's request. They do belong to Ontario. The hull is sitting on Crown land. I feel there's no reason they not be displayed.

"I personally feel very strongly about them being returned. It's very important, not just from a historical aspect but for tourism jobs as well." A staff member in Culture Minister lsabel Bassett's office said the future of the Atlantic artifacts is a top issue.

The Minister is certainly interested," she said, adding Bassett is expecting a full' briefing on the subject "The minister would be looking at a range of options."

And one of those options could be housing the articles in the region.

"It's going to depend on the willingness of local museums."

Eva Brook Donly Museum curator Bill Yeager said he'd welcome the artifacts with open arms.

"We're happy to provide a temporary home," he said. "Temporary in the sense it's hoped they can find a permanent home in Port Dover. But we're very happy to have them for a time.

"People would love to see them."

Regional Receiver of Wrecks, Ken Brant, did not return calls to his Sarnia based office.


The Atlantic

Alchem Incorporated: Eastern Erie Shipwrecks

174 Atlantic: Sidewheel passenger steamer of 267 ft sank on 8/20/1852 after colliding with the propeller steamer Ogdensberg in a heavy fog 4 miles due East of the tip of Long Point. The ship was carrying far in excess of its usual number of passengers and anywhere from 150 to 250 drowned in this disaster. The Atlantic had a freight cargo and $36,000 of American Express gold (in 1852 dollars) in its safe. For this reason it became the focus of the most famous, long running, and unprofitable salvage operation in the history of Lake Erie. The wreck lies in 165 ft of water and Johnny Green the diver who was hired to raise the safe spent years developing new pumps and hoses capable of withstanding the pressures involved. In 1855 after many attempts over several seasons the safe was found and cut free. But on returning to the surface to obtain cables to hoist it Green suffered a near fatal attack of the bends. Elliott Harrington of a rival salvage company finally recovered the treasure on June 27th,1856. A subsequent court battle ensued and most of the money was returned to its original owners with only $7,000 going to Harrington and his backers. One of the later attempts to salvage the baggage and cargo involved the use of a submarine developed by a man named Philips. This sank while being tested and probably still rests near the Atlantic. In 1984 the wreck was rediscovered by Mike Fletcher with help from commercial fishermen out of Port Dover, Ontario. More recently the Del Mar dive Company of California obtained the title to the vessel and has been engaged in a court battle with the province of Ontario over the right to salvage the remaining cargo. WQLN-TV in Erie Pennsylvania produced and sells an excellent video history of the Atlantic. We shall post the order address and price as soon as we obtain it.

MIKE FLETCHER AFTER THE ATLANTIC

"THE SEAHUNTERS'

THE SEAHUNTERS TEAM

WATCH THE SEAHUNTERS SERIES

"DREAMWRECKS" Mike's New Venture

"DREAMWRECKS" Mike On YouTube


Lake Erie Shipwreck Pages


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