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The Weird Legal Mechanics Behind Burials at Sea

A botched ocean funeral caused chaos in the Netherlands last week, but across the globe, sea burials are on the rise.
Noordwijk beach, where some of the urns were found.

Noordwijk beach, where some of the urns were found.

On a quiet shore a few miles north of the Hague's International Criminal Court, a seasoned beachcomber and his son were startled when they spotted something unprecedented in their decades of sand-scouring: an urn of human ashes. Nearby, a fisherman reeled in an inauspicious catch—another urn of cremated remains. Further up the coast, an elderly woman's stroll on the beach was interrupted by yet another vessel of mortality.

Last week's news reports of the three urns washing ashore across the Netherlands galvanized a flurry of rumors: Were the urns a result of a drug smuggling front? Perhaps some other sort of foul play?

Finally, after days of speculation, a Dutch shipping company provided a relatively drab answer to the riddle: It had bungled a sea funeral; the urns "slipped from an employee's hands over the railing," the company told the Guardian.

Across the world, burials at sea are on the rise, according to Michael Karcher, a maritime attorney and professor of admiralty law at the University of Miami School of Law. In 2017, 20,000 Germans were buried at sea, a marked increase from previous years, according to the German news site Deutsche Welle. Between 2007 and 2015, Hong Kong saw a five-fold increase in sea burials, according to its internal news service. "I have noticed a great increase in interest in burial at sea," Ann Rodney, an environmental protection specialist in the United States Environmental Protection Agency's ocean and coastal unit, told Mother Jones in 2011.

As the scarcity of burial plots becomes a more pressing issue and land prices continue to climb, people are seeking out more affordable funeral options. Karcher also attributes the recent decades' rise in sea burials to the massive uptick in the accessibility and affordability of boats during the 20th century, especially in the U.S. "One-hundred years ago, there were no recreational yachts as we know them," Karcher says. "The recreational boating world has grown, and it's now relatively inexpensive. The only people who had recreational yachts 100 years ago were the Rockefellers and the King." (In fact, the U.S. had its own sea burial scandal in 2010, when a man's floating body was spotted off the shore of Fort Lauderdale, Florida, a few days after his family had interred him in the watery depths.)

The history of ocean funerals goes back to the ancient civilizations of Greece, Egypt, and Rome. Vikings are famous for their ship burials, in which warriors and their hulking boats were set aflame and out to sea. Ibn Fadlan, a 10th-century traveler from Baghdad who documented his travels with the Volga Vikings, wrote vividly as a witness of one such ceremony. "You Arabs are fools," one Viking told him during the funeral. "You take the people who are most dear to you and whom you honor most and put them into the ground where insects and worms devour them."

But are sea burials legal? In the U.S., most case law on the subject deals with deaths at sea, and steadfastly reinforces the importance of upholding maritime tradition over the law of the land. One of the most recent cases, from 1988, involved a sailor who had a heart attack while his cargo ship was eight days from the next port of call. His captain immediately buried him at sea, without notifying his next of kin. When his daughter sued, claiming that burial without notification was a violation of U.S. tort law, a federal court of appeals resoundingly rejected her arguments. "Maritime law derives from customs at sea and therefore constitutes a separate and distinct body of law," the court wrote in the decision. "Only when there are no clear precedents in the law of the sea may courts look to the law prevailing on the land."

And the law of the sea was clear on this, the court concluded, quoting at length a sea burial description from Herman Melville's White-Jacket—"but there is something in death that ennobles even a pauper's corpse"—and listing dozens other literary classics that discuss the storied practice. The decision also cites an earlier decision from the 1940s ruling that anyone who willingly takes a ride on a deepwater boat "consents to burial therein in the event of death during the voyage," per the captain's discretion. "The custom of burial at sea has long been sanctioned by usage."

It's also sanctioned by the EPA a bit closer to the shore, provided you follow their rules and file some paperwork afterward. Under the general permit of the Marine Protection Research and Sanctuaries Act, most ocean dumping is prohibited, except for (human) sea burials, the disposal of marine mammal carcasses, and the Navy's SINKEX Program—where they torpedo and sink their own ships as part of training.

The EPA allows cremated remains, or full bodies in a a shroud or casket filled with holes. Plastics are strictly forbidden, as decreed by the International Maritime Organization's MARPOL convention on the prevention on marine pollution. Unfortunate for U.S.-based vikings at the end of their lives, burning a boat is not permitted, nor is transporting remains "by an expendable device, such as a balloon, rocket, or similar pyrotechnics, to land in or release remains over ocean waters."

Sea burials must take place at least three nautical miles from the coast, which Michael Sturley, an expert in admiralty law at the University of Texas School of Law, says has historically been considered the limit of a nation's territorial waters. "Think of the gambling boats, you could go out three miles, and then you can start gambling. It's almost the same type of thing," Karcher says. "There, it's fairly permissive."

Sea burial.

A burial at sea for two casualties of a Japanese submarine attack on the U.S. aircraft carrier USS Liscome Bay, in November of 1943.

As far as pop culture is concerned, the pinnacle of permissiveness is international waters, which Sturley says begins at 24 miles from shore, where the state's regulatory authority ends for most purposes. In many movies and television shows, international waters are depicted as an anarchic zone of lawlessness, where no country has any jurisdiction. (Think: Waterworld) But in actuality, any boat at sea is considered part of a "flag state"—meaning it and the people sailing on it are subject to the laws of the country it is registered to.

In international waters, "no individual country has the authority to regulate that patch of ocean," Sturley says. "But if there's a ship in it, the ship will fly some country's flag, will be registered in some country, and the flag state has authority to regulate anything that a ship does, including pollution." A stateless vessel is pretty much impossible, Karcher says. So while state laws preventing gambling can be avoided in international waters—just as they could by crossing into another state—no ship is fast enough to outrun federal law.

Federal law, right now, is largely concerned with dumping of oil and garbage, and less so about sea burials. "Maybe that's just because there are more examples of oil and garbage coming up on their beaches, and not as many dead bodies," Sturley says. This could change as sea burial becomes more popular. Karcher draws a parallel to the rise of marine anti-pollution laws, which only became necessary when enough large boats took over the seas. "Two-hundred years ago, it was 'the ocean is so vast and my ship is so small.' Well now there are bigger boats, and more of them, so pollution events is a much bigger deal than it used to be," he says. "Regulations will follow."