The State has asked the Supreme Court to overturn a High Court decision that it was not entitled to refuse to grant an American man a diving licence to carry out a $2 million (€1.5 million) "research expedition" on the wreck of the liner RMS Lusitania.
The vessel was sunk off the southwest coast in 1915 with the loss of 1,198 passengers and crew.
Feichin McDonagh SC, for the Minister for Arts, Heritage, Gaeltacht and the Islands, said yesterday that what F Gregg Bemis proposed to do effectively constituted "excavation" of the wreck. The Minister had no difficulty granting a "non-intrusive" diving licence to Mr Bemis but he wanted an "intrusive licence", to which certain conditions applied.
What Mr Bemis proposed to do with the wreck involved "a lot more than just cutting off rivets", counsel added. The Minister's refusal of Mr Bemis's application was also related to Mr Bemis's ignoring of the Minister's requests to supply detailed information about what was proposed, it was submitted.
The High Court had, it was argued, failed to give adequate regard to evidence that Mr Bemis did not regard himself as being obliged to secure expert assistance, including archaeological and/or scientific supervision when diving or carrying out research activity on the wreck.
Some of the High Court findings indicated that it had excluded from its consideration, or downgraded in importance, the objectives of the national monuments legislation, it was also submitted.
The three-judge Supreme Court yesterday began hearing the Minister's appeal against the High Court finding that the Minister's decision that Mr Bemis, of New Mexico, should have sought an "excavation" licence under a section of the National Monuments Act, 1930, was "irrational and unreasonable".
In June 2005, Mr Justice Daniel Herbert ruled the Minister's decision was based on a misinterpretation of the legislation and consequently found the refusal of a licence to Mr Bemis under section 3 (5) of the National Monuments Act, 1987, was outside the Minister's powers.
In May 1996, the High Court made an order declaring that Mr Bemis was owner of the Lusitania wreck, which lies on the seabed 18km (11.5 miles) off the Old Head of Kinsale, Co Cork. The 762-feet long ship was sunk by a German submarine on May 7th, 1915.
An Underwater Heritage Order was made in January 1995 under the National Monuments Act providing that the site be "protected". However, the legislation also provides that an application may be made to the Commissioners of Public Works for a licence to carry out certain activities.
Mr Bemis brought legal proceedings after the Minister, in a letter of May 22nd, 2001, rejected his application for a licence for his expedition as "invalid".
Mr Bemis had sought to be permitted to salvage and sell objects from the wreck in order to defray some of the $3 million cost of acquiring the wreck and of his diving operations. He also wished to salvage other items for preservation and permanent display in museums in Ireland and for travelling exhibitions.