The High Court has ruled that the Minister for Arts, Heritage, Gaeltacht and the Islands acted unlawfully in refusing F. Gregg Bemis’s 2001 application to dive, survey and explore the wreck of the RMS Lusitania. The court did not grant the licence or decide whether the proposed work should be approved. That decision remains for the Minister, subject to the legal principles set out in the judgment.
Mr Bemis, a United States citizen whom the judgment identifies as the wreck’s sole owner, applied on 7 March 2001 using an adapted form intended for non-invasive diving. The court found that no specific application form had been established for the kind of work he proposed. The Minister rejected the application as invalid on 22 May 2001, saying the form was unsuitable for invasive diving and that an excavation licence was required. The court found that the Minister had not sought further information or invited Mr Bemis to use another form, and had not considered the application on its merits within the statutory three-month period.
The judgment held that an application under the National Monuments (Amendment) Act 1987 could cover both invasive and non-invasive diving and exploration. An excavation licence under the National Monuments Act 1930 was required for digging or excavating in or under land, including land covered by water, but not automatically for every invasive investigation of a wreck. The court found the proposed work, as described in the applications, did not involve that kind of excavation. It also held that the law did not restrict applications to qualified archaeologists, though the Minister could impose reasonable licence conditions.
The court said Mr Bemis’s ownership was relevant to the conditions and the decision, and that restrictions must balance heritage protection with his property rights. It also set out requirements for a sufficiently detailed application and said a standard form could be required if supplied promptly and if it did not impose unlawful requirements.
Mr Bemis submitted a second, expanded application in October 2002 using an excavation-licence form, while stating he did not intend to excavate. The Minister refused it in January 2003 on grounds including his qualifications, the proposed methodology and possible sale of artefacts. The judgment noted that no direct relief was sought against that second refusal and said it did not determine the merits of either application. It confined the court’s role to setting the legal parameters for the Minister’s exercise of discretion.