Whose Planes Are They, Anyway?
The treasure that set off a lawsuit and commanded front-page headlines hardly looks worth fighting for. Wingless, corroded, ripped
open on its starboard side, the Grumman F6F-5 Hellcat* sits in a cold, damp corner of the Quonset Air Museum, a decrepit hangar
on the former Quonset Naval Air Station in North Kingston, Rhode Island.
"She's amazing, isn't she?" says Larry Webster, stroking the weathered fuselage.
The airplane was discovered in the summer of 1993, when a National Guard helicopter spotted what appeared to be a downed
airplane in the waters just off of Martha's Vineyard. A diver dispatched by the Coast Guard found an old wreck (of obviously no
importance to the Coast Guard) and contacted Webster, one of a handful of volunteers who run the Quonset museum. A round,
jovial amateur aviation archaeologist and warbird buff who has been poking around Rhode Island crash sites since he was a boy,
Webster was burning for a big find. And when it turned out that the wreck was in fact a rare World War II fighter, Webster felt like
he had struck paydirt.
Quonset contacted the Naval History Center in Washington D.C. Forget it, the center said. The plane was Navy property. Quonset
was forbidden to recover it.
But the guys at the museum couldn't help themselves. "We were just too excited," says Webster; "we went out and did it anyway."
And who could blame them? Professional salvors with huge budgets were scouring the ice caps of Greenland and the depths of
Lake Michigan searching for rare airplanes like the Hellcat. Of 12,275 produced during the war, only 20 remained. And one was
right there in Quonset's own backyard.
Besides, this was hardly a gang of privateers. Quonset is a small, nonprofit museum, and it already had airplanes on loan from the
Navy. The salvors just wanted to restore the plane for display. The pilot had been a local boy, and though his body had never been
found, his family was grateful to at least learn the fate of his plane. Local businesses donated services, and the Rhode Island
National Guard transported the airplane to the museum.
Within days agents from the Naval Investigative Service came calling. If the Hellcat wasn't immediately shipped off the the Navy's
National Museum of Naval Aviation in Pensacola , Florida, there'd be hell to pay. Piracy. Theft of government property.
Disturbing an archeological site.
"They insisted that an airplane that had sat in shallow water just off shore for 48 years was not abandoned," says Webster. "We
went out an recovered it and spent our own money and then they claimed it was theirs."
Quonset contested the ownership in court, but eventually the museum and the Navy reached a compromise. The Navy retained
ownership but agreed to let Quonset restore and display the airplane on long term-loan.
This would not be the first time the Navy had threatened a salvor with criminal prosecution, nor would it be the last. In recent
years, the disposition of old Naval airplanes has pitted the Navy against warbird enthusiasts, setting off volleys of angry accusations
and protracted legal battles.
The Navy's position seems clear enough. "Department of the Navy ship and aircraft wrecks are government property in custody of
the U.S. Navy," states the Navy fact sheet entitled "Sunken Navy Vessels and Naval Aircraft Wreck Sites Policy." "As part of its
custodial responsibilities under the National Historical Preservation Act, the U.S. Navy is obligated to protect its historic properties,
including aircraft and ship wrecks. The above act tasks federal agencies to manage their cultural resource properties in a way that
emphasizes preservation and minimizes the impact of undertakings that might adversely affect them."
Says Doug Champlin: "The Navy's policy is 'We don't need 'em, but you can't have 'em.'" Champlin is the owner of the Champlin
Fighter Aces Museum in Mesa, Arizona, the world's largest private collection of fighters. "People are finding all kinds of Navy
airplanes, but they're having to leave them underwater and that's counterproductive," he says. "In a few years all that will be left is
a pile of corrosion."
"The argument is made that the Navy is ignoring the planes and they're rusting, when private salvors and collectors could preserve
them and show them off," acknowledges Captain Robert Rasmussen, director of the National Museum of Naval Aviation. "My
counter to them is: 'You give me a sound plan to pull them up and maybe I'll let you do it and then loan it to you.' But that's not so
attractive because they can't make any money out of it."
According to a form letter the Naval Historical Center sends out to those interested in going after old Navy planes, salvors must
first submit a "thoughtful and thorough plan which takes into consideration the documentation, recovery, conservation/ restoration,
preservation and final exhibit of the aircraft in question. Also required is a financial plan which provides detailed information on
project costs and funding sources." And, if the wreck is over 50 years old, "Section 106 of The National Historic Preservation Act
of 1966 must be complied with through a review of the aircraft's potential eligibility for the National Register of Historic Places."
And then the museum in Pensacola and the U.S. Marine Corps Air-Ground Museum in Quantico, Virginia, "must be allowed to
exercise their guaranteed rights" of first and second refusal of the airplane.
Salvors and collectors say they understand the Navy's anxieties. "we don't want a bunch of cowboys out there with grappling
hooks any more then they do, and of course the Navy should have the rights of first refusal, but the private sector is well equipped
to get these planes," says Champlin.
"I can see the Navy's invoking its ownership when there's only one example of a TBD*, for instance," says salvor and restorer Roy
Stafford. "But I don't see it when you've got umpteen Hellcats and Wildcats and SBDs. Does it protect a national treasure or just
keep private enterprises out?"
Not all military services protect their old property as aggressively as the Navy does. If you're dead-set on recovering a B-29* stuck
on a frozen lakebed in northern Greenland or a P-38* rotting away on the Aleutian Island of Attu, the Air Force couldn't care less.
"You asked if it is possible for a civilian to obtain permission to recover and gain title on the P-38 on Attu," the Air Force Materiel
Command wrote salvor David Mahre in 1995. "Aircraft that crashed before 19 November 1961, when a fire destroyed the
pertinent Air Force records, and that remain wholly or partially unrecovered, are considered formally abandoned. The Air Force
neither maintains title to, nor has property interest in, these aircraft." The policy underwent a top-level review in 1994 and emerged
unchanged, with one exception. If human remains are discovered at the site, government personnel must be allowed to remove
them before the salvors can continue working.
The government of Canada is also willing to let private salvors go after old military aircraft. Says Major Dan Bellini, Director of
Disposal, Salvage, Artifacts and loans at the Canadian Department of National Defence Headquarters: "Although the Crown
maintains ownership of all Canadian military wrecks, the Department of National Defence grants salvage rights and title to
individuals."
But the U.S. Navy has long been ambivalent. Many times it has fought fiercely to control its underwater property, claiming that it
is not subject to traditional admiralty law. In essence, that law says that if a salvor finds something on the high seas, he is entitled to
one of two things. If the property has been abandoned, the salvor can keep it. If, on the other hand, the property still belongs to
someone, the salvor must get "liberal compensation" from the owner for returning it. By claiming "sovereign immunity" from this
salvage law, the Navy has staked out its own legal position: Without the Navy's permission, no one may salvage a piece of Naval
property, even if the Navy has clearly abandoned it.
But ownership apparently does not confer responsibility. In 1944 and 1951, when it was sued in federal court by the owners of
fishing vessels damaged by the sunken carrier USS Texas, the Navy claimed-successfully-that because it had long ago abandoned
the carrier, it was not responsible for any damage it did.
To confuse matters further, on some occasions the Navy has readily ceded control of its underwater property. In 1978, salvor Gary
Larkins (see "Gary and the Pirates," Feb./Mar. 1997) and his friend Dick Wauters were towing a side-scan sonar through Lake
Washington, near Seattle, when they found, among other planes, two Goodyear-built FG-1D Corsairs. They made a videotape and
took it to Captain Grover Walker, then director of the National Museum of Naval Aviation, and asked if he wanted them. "What
the hell would I want a Corsair off the bottom of Lake Washington for? I have five in the museum," Larkins remembers Walker
saying. "He was realistic about the whole thing and said as long as the planes went to an approved museum, then I could go
recover them." Larkins pulled up one of the Corsairs, which today graces Seattle's Museum of Flight.
"If I had a plane that the Navy museum wanted, then Walker would make you a deal on it," says the salvor. But if the museum
didn't need the plane, it had no objection to Larkins bringing it up for another museum to display. "The system worked and it
worked well," he says.
The museum in Pensacola is the Navy's biggest recipient of historic aircraft. A gleaming monument to Naval aviation, it draws over
a million visitors a year. Blue Angels A-4 Skyhawks* hang from a seven story steel and glass atrium, and the museums west wing
houses a replica of the flight deck of the World War II-era USS Cabot, where Hellcats, Wildcats, Dauntlesses, Corsairs, and
Avengers are all on display.
"The salvage of underwater aircraft has been unimaginably important" in developing such an impressive collection, says current
museum director Robert Rasmussen. "I can point to at least 10 airplanes that are on display right now that have been salvaged, and
the only reason we have any airplanes right now that actually took part in World War II is because they came out of Lake
Michigan."
A quiet, soft-spoken former Blue Angel who paints aviation scenes in his spare time, Rasmussen took over the museum
directorship from Walker in 1987. Soon after, he got wind of a recovery operation in Lake Michigan being run by Al Olson and
Taras Lyssenko. In the 1980s the two buddies spent their spare time looking for treasure in Lake Michigan, where the Navy had
conducted carrier training exercises during World War II. Part-time hobby though it was, they found the remains of some crashed
or ditched airplanes, well preserved in the lake's frigid fresh water. When A&T Recovery, as Olson and Lyssenko called the salvage
company they formed, brought up a Douglas SBD Dauntless dive bomber and a Grumman F4F Wildcat fighter for loan to the
Patriots Point Air and Space Museum in Mt. Pleasant, South Carolina, word reached Rasmussen. "These were some of the most
important planes to the history of Naval Aviation and I didn't have examples of either one," says the director. " I rescinded my
predecessor's position and took an interest in underwater aircraft."
Salvaging airplanes, however, takes money-lots of it. Sometimes, as an alternative to cash, clients arrange to pay for salvaging
services with an item the salvor wants: either part of the treasure being salvaged or something else, such as a piece of equipment
the client deems obsolete or surplus. But U.S. law permitted the museum only the exchange of one item for another, not an item
for a service. Rasmussen appealed to his Congressman, Earl Hutto, and in 1988 Congress passed a law that permitted the museum
to exchange equipment for salvage services.
Initially the trading went well. In the first trade with the museum, which centered on a salvage job in Lake Michigan, A & T
Recovery received title to two Wildcats (which the company quickly sold, unrestored, for $250,00 apiece) and a Dauntless, while the
museum got a Vought SB2U Vindicator*, a Dauntless, and a Wildcat.
"Those guys at the museum became a bunch of horse traders," laughs Lyssenko.
"The trading program has been the lifeblood of this museum," Rasmussen acknowledges. "Without it, our collection wouldn't be
half of what it is."
And then the trades began to go sour.
One of the first to go bad got started in 1991, after New York-based treasure hunter Robert Cervoni stumbled upon an airplane
some 500 feet underwater off the coast of Miami. He sent the video footage to Roy Stafford, whose Black Shadow Aviation had
restored many of the Pensacola museum's airplanes recovered for Lake Michigan. Bingo! thought Stafford the moment he saw the
tape. "It was the Holy Grail of Naval aviation," he says, the only known Douglas TBD Devastator in the world. Not only that, but it
appeared that the torpedo bomber may have been the sole survivor of the 1942 Battle of the Coral Sea, a vicious engagement in
the Southwest Pacific in which Japan sunk three U.S. Navy ships, including the carrier Lexington. The plane was priceless, says
Stafford. He set up a meeting between Cervoni and Rasmussen, during which Cervoni offered to sell the coordinates to the Navy
for $25,000.
"I got pretty excited," admits Rasmussen, but he adds that the Navy could not respond immediately because it would have first to
conduct "a thorough examination of the feasibility and cost of recovery and the viability of the aircraft for recovery.
After waiting several months for the Navy to respond, Cervoni sold the coordinates for $75,000 to Doug Champlin. Champlin then
approached Rasmussen with a proposal. "I needed a Wildcat for my collection and the museum had a bunch of them from Lake
Michigan," he says. "I said I'd deliver the TBD to the dock in exchange for one of the Wildcats. It was a win-win situation for both
of us....That TBD was worth $2 Million at least and they had Wildcats sitting in the rain. It wouldn't have cost the taxpayers as
cent."
Champlin says that Rasmussen and his deputy, Robert "Buddy" Macon, instructed him to file an admiralty lien on the wreck, which
essentially would have prohibited anyone from taking it until the federal admiralty court formally awarded ownership. To place a
lien, however, requires a piece of the wreck. Another $55,000 later and Champlin had the TBD's canopy.
Rasmussen recalls the situation differently. For one thing, he says Champlin initially asked for two Wildcats, not one. He denies
telling Champlin to remove the canopy and bring it up, which would have risked damage to the aircraft. "I might have encouraged
Doug to bring up a piece [of unattached metal], I can't remember, but that would have made sense and it wouldn't have been
unusual," he says. "It's hard to get a real analysis of a plane's condition until you hold it in your hand." Finally, Rasmussen denies
advising Champlin to file a lien. That, he says, would have been tantamount to ceding ownership of the TBD to Champlin.
Alarmed to learn that a lien was about to be filed, Navy personnel notified the Department of Justice. According to Champlin, "They
[Justice] said if I didn't give the canopy to the museum to Rasmussen and the museum immediately, then we'll prosecute you for
stealing government property. So I dropped the lien and shipped them the canopy."
Not long after that, another deal went bad. In 1993 Florida salvor Peter Theophanis went to Lake Michigan to look for a
particularly sound Dauntless that the museum told him it was interested in. The salvor couldn't find that airplane but he did find its
ugly-duckling sibling, a wreck that was little more than a Dauntless cockpit, wings, and landing gear. Significantly, the engine and
the fuselage aft of the cockpit had been removed, indicating that the Navy had abandoned the airplane decades before. Theophanis
filmed the Dauntless and sent the videotape to Pensacola.
According to the salvor, Rasmusseum and Buddy Macon told him that the Dauntless was a apiece of junk and that the Navy didn't
want it. So Theophanis felt free to bring the plane up and sell it to a private collector. He undertook the recovery openly, confidant
that he was breaking no laws. But months later, on the day his wife was due to deliver a baby, Theophanis was arrested and
dragged away by a black-clothed, machine gun toting SWAT team from the U.S. Marshals Service. The charges: theft of
government property. He wasn't allowed to place a phone call for 13 hours, and he was jailed as a flight risk for two days. ( The
charges were later dismissed on a technicality, and Theophanis is now suing the Navy.)
"Why didn't they file a civil suit against me to determine ownership?" the salvor asks. "For there to be a crime, there has to be an
intent, and I didn't steal that plane- it was abandoned."
Not surprisingly, Rasmussen's account differs markedly. "He was well aware that he needed [Navy] approval and he did not have
it," the director maintains.
And then, of course, came Webster and the Hellcat and the Quonset Air Museum in Rhode Island.
In all of these cases, says Rasmussen, "we're always portrayed as the bid, bad, bureaucratic Navy pursuing these tiny organizations
dedicated to the preservation of history. But once Navy policy is violated and the law is broken, we have no choice. These are rare
pieces of American aviation history and we have to maintain them. I want to have access to them for the museum, and I don't
relish seeing them enter the civilian sector, where who knows what will happen to them. Sure, they might be well protected in a
private collection, but who's to say what will happen 50 years form now? Maybe the collector's grandson won't care about old
airplanes and he'll sell them to Japan."
Rasmussen admits the museum has more aircraft than it can use. During my visit, he took me to a beat-up shed behind the
museum and opened the rusty door to reveal row upon row of weathered Wildcats and Dauntlesses, even an exceedingly rare
Grumman Avenger, their wings sill bearing stars and bars- potentially millions of dollars' worth of rare warbirds. "I'd say they're all
worthy candidates for loan or trade," Rasmussen says. Indeed, many of the musuem's surplus aircraft are on display throughout the
country, from the terminal of Chicago's O'Hare Airport to the tiny Quonset museum.
But even though blessed with this abundance, the Navy has grown intensely vigilant over the aircraft that remain underwater. In
the last four years, it has approved only one recovery proposal (which eventually fell through). Part of the reason is that another
party started keeping an eye on the Navy's submerged relics: the Naval Historical Center.
Located in the Navy Yard in Washington, D.C., a campus of tidy parade grounds, cannon, and two-century-old buildings, the NHC
has long been the central repository of Naval history. The center houses the Navy's official library, as well as its official museum.
As salvors got wind of the museum's trading, alarm bells started ringing at the NHC.
The NHC's head of underwater archeology is Robert Neyland. A tall man with a formal air, he explains that the Navy's policy is to
view every Navy airplane wreck that is at least 50 years old as a potential archeological site to be studied, protected, and considered
for placement on the National Register of Historic Places. "We want to document the position of the aircraft in the water, its
condition, what was registered on the gauges, the positions of the controls- all the things that give you a sense of it," he says. "I'm
not sure that the recovery of a single aircraft will change our major interpretations of World War 2. However, finding the location
of specific aircraft lost during the Battle of Midway [for example] can provide valuable information about where the air battles
occurred and planes were lost."
"I'm sorry," responds Taras Lyssenko, "but archeology has nothing to do with these aircraft. The historical center comes up with
stuff that's nonsense. You bring up a plane, look at is information plate and number, and then look at its history. The data is all
there." Even museum director Robert Rasmussen admits: "It might be stretching it to say that every airplane on the bottom of
Lake Michigan, for instance, is a bona fide archeological site. But I guess it's in the eye of the beholder."
Neyland says that careful documentation will also help future museum managers. "As part of a museum collection, the aircraft may
have to be restored not only once but many times," he says. "questions will eventually arise of what is original and what has been
replaced or altered."
In examining salvor's proposals, Neyland is particularly attentive to the disposition of the airplane after it has been salvaged. he fears
that "rash recoveries" that don't include long-term plans will ultimately result in valuable information being lost.
"If someone has a valid proposal and the resources to recover a plane, we don't discourage it," Neyland says. But, he adds, since
the NHC became involved in the recovery of Navy aircraft, "none of the salvors have come up to us with a real plan. They're all
involved in some speculative venture.... In almost all of these requests, there is no museum identified as willing to take the aircraft
and to take responsibility for the conservation, restoration, and exhibit."
After talking patience and the need for careful, professional recovery, the Navy dived into the tricky business of aircraft recovery
itself. Back in 1978, Gary Larkins had found in Lake Washington not just a pair of Corsairs but a rare, intact Martin PBM-5*
Mariner patrol craft, one of only two know to exist. It was upside down under 70 feet of water, its wings covered "with
approximately six feet of silt material," and its recovery would involve "a major degree of difficulty" and a substantial monetary
expenditure," in the words of a salvage proposal that Larkins made to the Pensacola museum in 1982 (the proposal was never
approved). In 1996, a team of Navy divers and salvors went after the PBM. The project was to take two weeks but stretched into
eight. When the increasingly frustrated team finally attempted to lift the plane, it broke apart because the silt hadn't been adequately
removed. "We canceled the recovery when it became evident it couldn't be done with the assets available," says Neyland, who
adds: "In hindsight, [the divers] should have aborted the project earlier in order to do additional planning."
"What the hell was the Navy doing trying to get that plane?" asks Roy Stafford. "They don't have the expertise that a Larkins or I
have to safely salvage anything, and they destroyed a priceless airplane."
"I don't know of any [commercial] salvors who could have done that airplane recovery, says Neyland, noting that the PBM-5
flying boat is almost the size of a 737.
Every salvage job represents a unique set of challenges, of course. But Larkins notes that his recoveries have included such
enormous craft as the B-29 Kee Bee and the B-17 My Gal Sal.
In 1996, Doug Champlin, out $130,000 for the coordinates of the TBD and the recovery of the canopy, learned that A & T was
planning to recover the plane for the Pensacola museum.
Lyssenko says that he found the TBD fair and square, maintaining: "Any good survey company can go and find that plane" by
towing a side-scan sonar over the approximate location.
"Are you kidding?" responds Champlin. There's no way in a million years, he says, that Lyssenko could have found a fighter 500
feet underwater so quickly. "There's more in this than I'm willing to tell you without proof," he hints.
In any event, not long after, in an effort to raise money for the eventual salvage of the TBD, the museum signed over the title to 11
unrestored C-130 Hercules* transports to its non-profit foundation, which then sold the C-130's to a California airplane dealer for
$200,000. Some estimate that restored, they would be worth almost $20 million. Rasmussen defends the transaction: "The Defense
Reutilization Management System valued the planes at less than $5,00 a piece," he says, adding that the airplanes were put up for
open bid and went to the highest bidder.
In frustration, Champlin asked U.S. Senator John McCain of Arizona, a former Navy aviator, to look into the TBD saga. McCain's
office questioned various branches of the Navy-the legislative affairs office, the NHC, the counsel office- and the Navy, according to
a McCain aide who asked to remain anonymous, acknowledged total confusion. At first the Navy hoped that after studying the
question of ownership and the use of outside salvors, it would come up with a clear and fair policy by the fall of 1997, the aide
says. But, "it's a convoluted issue and much more complicated than we though, and now the Navy says it hopes to have a policy in
place by the end of the year." Until the navy resolves the issue, it maintains a moratorium on all trades.
Last April, the U.S. Supreme Court issued a decision that may well dictate how tough the Navy's policy can be. After reviewing a
complex legal battle between salvors and the state of California over the ownership of the Brother Jonathan, a steamer that went
down in the 1850s off the California coast, the court ruled unanimously that, in effect, property not in actual possession of the owner
cannot be protected by sovereign immunity. "The decision means that warbirds that aren't in actual possession of the Navy can be
legitimately subject to a salvage claim," says salvor attorney Peter Hess, "and if they still belong to the Navy, then the Navy is
obligated to pay a salvage reward."
In future battles, the Navy, of course, may interpret the decision differently. But salvors aren't wasting any time. "I'm going to go
ahead and protect my investment," says Doug Champlin of the TBD. "I'm going to go get it before someone else does and we'll
see what happens."