THIRD LUSITANIA BEMIS SALVAGE CASE: Irish Administrative Law and Litigation—Part XIV

Michael Sean Quinn*

This blog essay is probably the last of a whole series of Lusitania pieces.  the last one was entitled Lusitania Salvage Part XIII, and it was dated 8/5/15

This part could also be called, “The
Irish Cases.”  The story involves
technicalities of Irish statutes, administrative procedure, lower courts, and
the Supreme Court of Ireland. For an international audience, not terribly
interested in the ins-and-outs of Irish law and legal procedure, the story can
be conceived as  a relatively short one.

The background is that the Lusitania
was sunk a few more months than a century ago. Years later the Irish people and
government of Ireland because interested in protecting historical and/or
anthropologically significant relics. A series of relevant statutes was passed,
and a subordinate administrative agency was created to look after the statute,
issue licenses in accordance with the statutes, and monitor activities.

Originally the Commissioner of
Public Works had licensing and other authority. Eventually, however, it was
turned over to the bureau run by the Minister for Arts, Heritage, Gaeltacht and
The Islands (the “Minister”). (The term “Gaeltacht” refers to several isolated
regions in Ireland, most on the West coast where the Irish-language is the
principal one spoken. Some of the people who live there are reported not to
speak English at all, but I’m not inclined to believe it; after all,
appearances can be deceiving.)

Now, to this mix, add Gregg Bemis.
He had been commissioning diving expeditions on various sites and on the
Lusitania, but by 2001 he wanted, more or less, to have people go down into to
his ship—he owned it, as the reader may recall—take a look around, take inside
photographs, do some “in hull” videos, remove some objects; sell the resulting
revenues to pay for the various exploratory dives,  settle a historical dispute, and remove some
personal property for museum display–some of which would be in Ireland and
some would be elsewhere, some would of which would travel from exhibit to
exhibit with the consent, for example, of the chief Irish museum.
From the point of view of many Lusitania aficionados, the
most interesting part of the expedition was the settling of the historical
dispute. As all of them know, and many other have heard, there was (and, to
some extent, is) a lingering controversy as to what happened and what caused
the ship to sink as fast as it did.  The
Lusitania was a gigantic ship for its time. It sank after being torpedoed by a
German submarine in about 18 minutes. 
This time is much, much shorter time than a “mere” torpedo explosion
would cause of a ship this size and this well built. There would have to have
been a second causative event for the ship to sink that fast.  And indeed, a number of people on board who
survived heard a second explosion.

So, what caused the second explosion? There have been a
number of views expressed over the century. Many of them came up right away.
Maybe a boiler burst, wreaked havoc, and wrecked here Majesties “crown ship.”
Maybe this. Maybe that. Or maybe there were lots of explosives down in the
cargo bay being sent to Liverpool to assist the British government in its fight
against Germany.  (Of course, if the ship
was more or less  posing as a passenger
liner only but was also (or really) a warship, as weapon cargo ships were and
are, then—at least at that time–Germany’s action of sinking the vessel and
killing more than 1100 people would be acceptable under international law,
or—at least—closer to it. If the ship were purely a passenger vessel, or close
to it, then the action of the U-boat would have violated international law.

So one of the things Bemis wanted to do was to explore the
interior of the ship in enough detail to settle that controversy once and for
all.  His interest in this was stimulated
in part be the fact that there had been some indication that there were quite a
number of bullets on the vessel, though not enough to make the Lusitania a warship.  The problem was that in order to accomplish
his purpose, Bemis might have to “blast” some holes in some walls in order to
get from Point A to Point B within the vessel.

The Minister did not like this idea
at all. Consequently, there was a history of friction between Bemis and the
agency.  Indeed, one of the courts calls
Bemis “obstinate.”

 Eventually, in 2001,
Bemis filed, or had filed, an application for a license; the agency had a form
that was used regularly, and Bemis used that form in part, but with additions
and supplements. Upon this ground, and others, the Minister denied Bemis a
license, and the litigation began.

In started in the “High Court.”  Bemis
v. Minister for Arts Heritage Gaeltacht and The Islands and Ors,
IEHC 207 ([June 17,] 2005).  The High
Court in Ireland is a trial-level court, but one which at least to possess
special jurisdictions, e.g.., over some criminal matters, most  larger civil cases,  and over all  cases which involve judicial review of
statutes and/or government actions. Or so it looks to me, an emigrated
Irishman, alright,** but not an Irish jurisprudent.

(The “High Court,” of which there is actually more than one,
is distinguished from other trial courts, and those are known as “Circuit
Courts.” This was not the High Court’s first involvement with Bemis. In 1996,
it has declared Bemis the owner of the vessel, just as had happened elsewhere.)

Bemis filed his case against the Minister
in 2001, shortly after the Minister had denied Bemis’s application.  There were a variety of maneuvers. Experts
were retained all round. An immense record was assembled—file folder upon file
folder—and, eventually, a hearing lasting several days was held. (Interestingly,
one of the maneuvers was Bemis filing a separate application for a related but
different license. The Minister tried to use this filing to undermine Bemis’s
lawsuit, even though that application too was denied, but failed.)

The High Court issued an opinion that covered a variety of
issues. Most significantly, however, it decided that there was no statutorily
required form that an applicant like Bemis was legally required to use and so
the Minister’s denial of the application on the grounds that it was on the
wrong form was rejected.

The issue then went on to the
Supreme Court of Ireland. There a three judge panel decided in favor of
Bemis.  It did not agree with the High
Court’s “learned trial judge” on all issues, however. A good deal of the courts
lengthy opinion concerned the intricate ways in which the applicable statutes
(the “National Monument Acts of 1930, 1987, and 1994) were interwoven.  In addition, the Supreme Court reviewed the
legal history of the administrative side of the case at some length. It had to:
the appeal of the Minister contained 22 technically different counts.

Significantly, however, setting
aside all of the zigs and zags of the Supreme Court opinion, the court affirmed
the High Court and held, in effect, that the Minister has abused its discretion
in the way it(?) refused the application.

 The Bemis application was granted within a
few days after the publication of the opinion on March 27, 2007. 

Of the reader is tempted to believe
that everything was hunky dory from Bemis’s point of view thereafter, pause for
a moment. Do lego-political controversies every get resolved that quickly? Will
there not be some twists and turns after a Supreme Court makes a decision? Does
the reader really believe that the Minister is done resisting? It is now 2015,
and the dive Bemis first sought in 2001 has still not taken place—at least not
fully–and the five year license has had to be renewed at least once and is
about to run out again. If you’re still curious, look at stuff on the Net.

There was however, a judicial
proceeding regarding the enormous attorney fees the tax payers of Ireland had
to fork over. That is an entire different story, however.

Michael Sean Quinn, Ph.D., J.D.

The Law Firm of Michael Sean Quinn et

Quinn and Quinn

        1300 West Lynn Street, Suite 208

                                                              Austin, Texas 78703

                                                                  (512) 296-2594

                                                             (512) 344-9466 – Fax


**My Irish ancestry
and my Irish name have followed me around some. In the 1980s, when the federal
government did not have the high tech airline security passenger check-in
system, there was a more primitive system. 
There was a list each airline had—or so I’ve been told—which would be
reflected on one’s boarding pass.  People
who had signals on their boarding passes were searched ever so carefully.  I was set aside and searched dozens of times.
Now, for those readers who have not already grasped what was happening, check
my name against other occurrence of it on the Net. (By the way, I was so ill
informed at the time that I thought all this was a continuing hangover from the
earlier race riots and opposition to the Viet Nam war.)


Originally posted on 10/20/2015 @ 7:39 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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