The Supreme Court has dismissed the Minister’s appeal against a High Court declaration that the rejection of F. Gregg Bemis’s 2001 application to work on the wreck of the Lusitania was unlawful.
The application sought permission for a forensic examination of the wreck, including clearing silt and entering it by cutting or blasting through barriers. It also proposed recovering items for museum displays and limited sales. The wreck lies several miles off the Old Head of Kinsale, County Cork, in a restricted area under an underwater heritage order.
The Minister’s letter of 22 May 2001 treated the application as invalid, saying the proposed intrusive work was not appropriate for a non-intrusive diving licence and that an excavation licence would also be needed. The High Court declared the decision void and of no effect. It granted no other relief.
In a judgment delivered on 27 March 2007, the Supreme Court upheld that declaration. Justice Macken found that the Minister had wrongly rejected the application at the outset rather than determine it on its merits. The licensing scheme under the National Monuments (Amendment) Act 1987 allowed licences for intrusive as well as non-intrusive activity, potentially subject to conditions. The Minister could have sought further information he reasonably required.
The court also held that some proposed work could require a separate excavation licence under the National Monuments Act 1930. Whether that requirement applied depended on the nature and scope of the work. The proposed activities were capable of falling within the Act’s rules on digging or excavation, but the Minister had made no finding on that issue in the 2001 letter. The Supreme Court did not decide whether the proposed work was excavation or whether any licence should be granted.
The Minister argued that the proceedings were moot, in part because a later, more detailed application had been refused and not challenged. The court rejected that argument, while expressing no view on the later application. It also left the merits of any future application and Bemis’s claimed property rights undecided. The appeal was dismissed and the High Court order affirmed.