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, [2005] 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
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**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.)