Historic Wrecks Act 2001

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/2001/Acts/Historic%20Wrecks%20Act%202001.pdf

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Historic Wrecks Act 2001
HISTORIC WRECKS ACT 2001

1989 Revision 1

BERMUDA
2001 : 35

HISTORIC WRECKS ACT 2001

[Date of Assent: 27 December 2001]

[Operative Date: 30 January 2003]

ARRANGEMENT OF SECTIONS

PART I
PRELIMINARY

1 Citation
2 Interpretation

PART II
THE HISTORIC WRECKS

AUTHORITY

3 Establishment of the
Authority

4 Functions of the Authority

PART III
CLASSIFICATION AND

PROTECTION OF WRECKS,
ETC.

5 Appointment of Custodian
6 Custodian to classify

wrecks and sites
7 Protection of wrecks and

marine heritage sites

8 Licences
9 Penalties

PART IV
OWNERSHIP, FINDERS'

REGISTER AND THE
NATIONAL COLLECTION

10 Ownership of wreck and
historic artefacts

11 Register of finders
12 National Collection

PART V
MISCELLANEOUS

13 Inspectors
14 Amnesty and

abandonment of Crown
claims

15 Regulations
16 Repeal

HISTORIC WRECKS ACT 2001

2 1989 Revision

WHEREAS it is expedient to establish a Custodian of Historic
Wrecks and an Historic Wrecks Authority to preserve, protect and
safeguard Bermuda's underwater cultural heritage by making provision
for the classification of wrecks and to control the archaeological and
scientific examination of historic wrecks; and for purposes connected
therewith:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

PART 1
PRELIMINARY

Citation
1 This Act may be cited as the Historic Wrecks Act 2001.

Interpretation
2 In this Act—

"the Authority" means the Historic Wrecks Authority established
under section 3;

"cultural remains" means deposits containing artefacts and
evidence of human habits and customs;

"the Custodian" means the Custodian of Historic Wrecks
appointed under section 5;

"historic artefact" means flotsam, jetsam, lagan and any artefact
found in the waters of Bermuda which is associated with a
wreck or a marine heritage site and which is more than 50
years old;

"licence" means a licence issued under section 8;

"licensee" means a person, institution or body of persons who
holds a licence;

"marine heritage site" means a site classified under section 6 as
a marine heritage site;

"the Minister" means the Minister charged with responsibility for
wrecks;

"the National Collection" and "the Collection" mean the National
Collection established under section 13;

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"open wreck" means a wreck which

(a) the Custodian has classified under section 6 as an open
wreck; and

(b) is open to recreational use by divers;

"operative date" means the date on which this Act comes into
operation;

"restricted wreck" means a wreck which

(a) the Custodian has classified under section 6 as a
restricted wreck; and

(b) is not open to recreational use by divers;

"site" means a submarine area within the waters of Bermuda
containing a wreck or a marine heritage site;

"waters of Bermuda" includes the contiguous zone within 24
nautical miles of the nearest point on the baselines defined in
the Bermuda (Territorial Sea) Order in Council 1988;

"wreck" or "historic wreck" means the remains of any vessel
found on the shores or in the waters of Bermuda which has
been abandoned by its owner for at least 50 years and which
is not at the relevant time being processed for salvage or sale
under the Wreck and Salvage Act 1959, and includes flotsam,
jetsam, lagan, and anything associated with a shipwreck or
derived therefrom.

PART II
THE HISTORIC WRECKS AUTHORITY

Establishment of the Authority
3 (1) There is established a body of persons to be called the
Historic Wrecks Authority which shall perform the functions assigned to
them by this Act and such other functions as the Minister may
determine.

(2) The Authority shall consist of a chairman appointed by the
Minister and seven members appointed by the Minister appearing to him
to represent Bermuda interests related to scientific research, cultural
resource management, tourism, diving or dive boat operators, and
education.

(3) The Custodian shall ex officio be a member of the Authority.

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(4) The chairman and members of the Authority shall hold
office at the Minister's pleasure.

(5) The Authority shall regulate its own procedure.

(6) The Authority shall, within three months of the end of each
year, submit a report on its activities for that year to the Minister.

(7) The Minister shall, as soon as practicable after receipt of the
report under subsection (6), cause a copy of the report to be laid before
both Houses of the Legislature.

(8) Fees shall be paid to the members of the Authority in
accordance with the provisions of the Government Authorities (Fees) Act
1971.

Functions of the Authority
4 (1) The functions of the Authority are

(a) to advise the Minister

(i) on matters relating to the management of historic
wrecks and marine heritage sites in the waters of
Bermuda; and

(ii) on the management of the National Collection under
section 12;

(b) to advise the Custodian on

(i) the classification of wrecks and sites under section
6; and

(ii) the issuance of licences and the conditions which
shall be attached thereto under section 8; and

(2) No proceedings shall lie against the Authority or any
member of the Authority in respect of anything done in good faith in the
exercise or intended exercise of their functions.

PART III
CLASSIFICATION AND PROTECTION OF WRECKS, ETC.

Appointment of Custodian
5 The Minister shall appoint a Custodian of Historic Wrecks, who
shall be deemed to be a public officer and who shall

(a) after consultation with the Authority, classify wrecks
and sites and issue licences; and

HISTORIC WRECKS ACT 2001

1989 Revision 5

(b) perform the duties and discharge the functions assigned
to him by this Act and by any other statutory provision.

Custodian to classify wrecks and sites
6 (1) The Custodian, not later than three months after the
operative date or such longer period as the Minister may authorize, by
notice published in the Gazette, shall

(a) classify all known wrecks on the shores, or in the
waters, of Bermuda;

(b) enter the classification in an official Register of Wrecks
and, in the case of open wrecks, identify the location of
the site of the wreck;

(c) classify any submarine area that is not known to contain
a wreck but that contains or may contain historical
artefacts as a marine heritage site and identify the
location of the site.

(2) Where a wreck or prospective marine heritage site is
discovered after the coming into operation of this Act, the Custodian
shall exercise the powers conferred by subsection (1) in respect of that
wreck or site.

(3) A wreck referred to in subsection (1) shall be classified as
an open wreck or a restricted wreck.

(4) The Custodian may, after consultation with the Authority,
reclassify a wreck that has been classified under subsection (1) or (2)
and, where he does so, he shall publish a notice of the reclassification in
the Gazette.

(5) Where a wreck or site is classified under subsection (1) or
(2), the Custodian shall cause the wreck or site to be identified by green
or red submarine markers indicating that the wreck or site is or is not
open to recreational use by divers.

Protection of wrecks and marine heritage sites
7 (1) No person shall mark, remove or otherwise interfere with,
deal in or possess any wreck or historic artefact unless he is licensed
under section 8 and authorised by the licence to do so.

(2) A person who contravenes subsection (1) is guilty of an
offence and liable on summary conviction to a fine of $25,000 or
imprisonment for one year, or both.

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(3) Where a person is convicted of an offence under this
section, the court shall order that anything removed in contravention of
subsection (1) be forfeited to the Crown.

Licences
8 (1) Subject to subsections (2) and (3), the Custodian, after
consultation with the Authority, may issue licences to conduct surveys
of, or to investigate or conduct research in respect of, wrecks and sites of
the following classes

(a) a licence authorizing the licensee to carry out a pre-
disturbance survey, using only hand tools and survey
techniques that are not invasive, of a submarine area to
document the location and structure of a wreck, cultural
remains or other elements of historical or archaeological
interest with such minimal disturbance of the area as is
authorized in the licence;

(b) a licence authorising the licensee to conduct research on
a restricted wreck site or marine heritage site including
authorization to recover and remove artefacts and
cultural remains and to conduct research pertaining to
the site subject to conditions imposing requirements
with respect to

(i) the use of scientific methods,

(ii) the provision of an archaeological plan to be
approved by the Authority,

(iii) regular reporting and monitoring of work on the site,

(iv) archaeological expertise or previous experience with
work of this nature, and

(v) the publication of the results of the work;

(c) a licence authorising the licensee to carry out work on
an open wreck site subject to such conditions as the
Custodian, after consultation with the Authority, may
impose.

(2) When consulted on an application for a licence under this
section the Authority shall consider

(a) in the case of an institution, whether it is a bona fide
institution;

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1989 Revision 7

(b) in the case of a person or body of persons, whether the
person or persons are fit and proper to carry out the
work; and

(c) in both cases, whether the applicant has the resources,
expertise, experience with submarine activity and
affiliation with any maritime or archaeological
organization necessary to enable the work to be done
competently and to fulfil any conditions.

(3) Applications for licences shall be accompanied by a
statement which shall include

(a) specifications for the area to be covered by the licence
and demarcation of the site;

(b) measures for the protection of the environment and of
the wreck or site;

(c) the objectives of the project;

(d) the methods and techniques to be employed;

(e) the composition, qualifications and experience of the
project team;

(f) documentation of the project;

(g) the field stabilization and conservation of the artefacts;
and

(h) the deposit of records of the project.

(4) A licence shall remain in force for a period of one year
commencing on the date of issue and may be renewed.

(5) A licensee shall deposit a copy of the records related to the
project with the Custodian within six months of the completion of the
project.

(6) If, at any time, the Custodian finds that circumstances have
changed or the conditions imposed are not being complied with, he may,
after consultation with the Authority, alter the conditions or suspend a
licence by giving notice in writing of the alteration or suspension to the
licensee.

(7) Where a licensee has been convicted of an offence under
this Act, the Custodian may, by notice in writing, cancel the licence of
that licensee with effect from the date specified in the notice.

HISTORIC WRECKS ACT 2001

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(8) A licensee who is aggrieved by the refusal of a licence or by
the conditions of a licence, or the alteration of any conditions or the
suspension or cancellation of a licence under subsection (6) or (7) may by
notice in writing appeal to the Minister and the Minister, after giving the
Custodian and the licensee full opportunity to make representations,
may confirm the decision of the Custodian, or reverse it and issue or
reinstate the licence, or revise the conditions of the licence.

(9) Licences may not be transferred by the licensee to any other
person or institution.

(10) Any licence issued under section 30 of the Wreck and
Salvage Act 1959 shall expire in accordance with the terms thereof but in
any event no later than six months after the operative date.

(11) Fees for licences are as prescribed under the Government
Fees Act 1965.

Penalties
9 (1) Any licensee, or the agent or employee of a licensee, who
fails to comply with any condition of a licence is guilty of an offence and
is liable on summary conviction to a fine of $10,000 or imprisonment for
one year, or both.

(2) Any person, not being a person referred to in subsection (1)
or a person specifically authorized to do so by the Custodian, who

(a) removes any artefacts or other thing from a site;

(b) disturbs a site; or

(c) interferes with any marker or with anything placed on a
site by the Custodian or by the licensee or his agent or
employee,

is guilty of an offence and is liable on summary conviction to a fine of
$25,000 or imprisonment for one year, or both.

(3) Any person, not being a person referred to in subsection (1)
or a person specifically authorized to do so by the Custodian, who
wilfully dives on the site of a restricted wreck is guilty of an offence and
is liable on summary conviction to a fine of $5,000.

(4) Where a licensee or the agent or employee of a licensee is
convicted of an offence under this section, the court shall order that
anything removed from the site be forfeited to the Crown.

(5) Where a person other than a licensee or the agent or
employee of a licensee is convicted of an offence under this section, the

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court shall order that anything removed from the site be forfeited and
returned to the licensee.

PART IV
OWNERSHIP, FINDERS' REGISTER AND THE NATIONAL

COLLECTION

Ownership of wreck and historic artefacts
10 Notwithstanding section 12, all wrecks and historic artefacts are
vested in the Crown absolutely and shall be deemed to be in the
possession of the Minister.

Register of finders
11 (1) Where any person finds any previously unreported wreck or
historic artefact and gives the notice required by section 9 of the Wreck
and Salvage Act 1959, the Custodian shall enter details of the name of
the finder and the location at which the wreck or historic artefact was
found in a register of finders.

(2) Where a person finds any previously unreported wreck or
historic artefact and gives the notice referred to in subsection (1), the
Minister may, having regard to the circumstances in which the artefact
or wreck was found, pay a good faith honorarium, without prejudice, to
the person finding the wreck or artefact:

provided that in considering such payment due regard shall be
taken of the national interest, specifically the need to preserve, protect
and safeguard Bermuda's underwater cultural heritage.

(3) Any honorarium under subsection (2) shall be paid out of
the Consolidated Fund.

National Collection
12 (1) There shall be created a National Collection designed to
display Bermuda's underwater cultural heritage which may include, in
addition to such items as the Minister after consultation with the
Authority may decide, an electronic virtual database of both public and
private collections.

(2) The Collection may contain

(a) any artefacts retained by the Minister;

(b) artefacts donated or on loan from private collections or
otherwise acquired by the Minister; and

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(c) a virtual image of any wreck or historic artefacts which
have been recovered from a site and which the Authority
considers to be of cultural, historical or scientific
interest;

(3) The Minister, after consultation with the Authority, shall
establish standards for data to be deposited with the Collection and the
standards shall provide for protection of the data under the law of
copyright.

(4) The Minister, after consultation with the Authority, shall
decide

(a) which institution or body of persons located in Bermuda
shall be awarded custody of the records and the
recovered artefacts of the project;

(b) the conditions to be imposed for the care and
conservation of, and public access to, the Collection; and

(c) the circumstances under which any portion of the
Collection may be sent out of Bermuda.

(5) When consulted under subsection (4) the Authority shall
consider

(a) whether the institution or body of persons is bona fide;
and

(b) whether the institution or body of persons has the
facilities to care for the Collection in a professional
manner and to ensure access to the Collection by the
public.

(6) The Minister, after consultation with the Authority, may
withdraw part or all of the Collection from any institution or body of
persons if the Minister determines that the conditions imposed under
subsection (4)(b) for the care and conservation of, and public access to,
the Collection are not complied with.

PART V
MISCELLANEOUS

Inspectors
13 (1) The Minister shall designate persons to be inspectors for the
purpose of enforcement of this Act and shall give every such person a

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certificate of his designation signed by the Minister and the person so
designated.

(2) For the purpose of ensuring that any conditions of a licence
are complied with an inspector may require a licensee to produce such
records relating to work at a site as the inspector may specify and to
permit the inspector to take copies of them.

(3) Any person who obstructs or hinders an inspector in
carrying out his functions is guilty of an offence and liable on summary
conviction to a fine of $5,000.

Amnesty and abandonment of Crown claims
14 (1) No prosecution of any person shall be laid in respect of any
offence under section 9 of the Wreck and Salvage Act 1959 that occurred
before the coming into operation of this Act if the person, within six
months of the operative date or such longer period as the Minister may
authorize by notice published in the Gazette

(a) reports to the Custodian that he has found and taken
possession of artefacts at the site of a wreck; and

(b) permits the Custodian to photograph and record
pertinent details of the artefacts for inclusion in the
database of the National Collection.

(2) The Minister, on behalf of the Government of Bermuda,
hereby abandons any claim that the Crown in right of Bermuda may
have in respect of any artefact recovered from a wreck that

(a) a person has found or taken possession of before the
coming into operation of this Act; and

(b) has been reported to the Custodian and photographed
and recorded under subsection (1).

Regulations
15 (1) The Minister may, after consultation with the Authority,
make regulations

(a) for bringing into operation the provisions of this Act;

(b) providing for the forms and procedure to be employed in
the issue of licences;

(c) prescribing the means of marking a wreck site or marine
heritage site;

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(d) setting out the powers of inspectors.

(2) Regulations made under subsection (1) are subject to the
affirmative resolution procedure.

Repeal
16 Part II of the Wreck and Salvage Act 1959 is repealed.

Commencement
17 This Act comes into operation on such date as the Minister may
appoint by notice published in the Gazette.