In December 2009, U.S. District Court Judge Steven D. Merryday issued an order concerning ownership of artifacts from a shipwreck. For now it is the final word in a 2
-year legal case that has commanded international headlines and captured the attention of officials in three separate nations—the United States, Spain, and Peru.Were it only a case involving a naval shipwreck of considerable age (the ship in question sank in 1804) or even one in which there was considerable loss of life (more than 250 Spanish naval officers, crew, and civilians went down with the vessel), the matter before the court would have been of great interest to historians, archaeologists, and aficionados of Age of Sail warships and battles. What brought worldwide interest was the recovery of more than 500,000 silver coins and 203 gold coins—a treasure reportedly worth as much as $500 million.1
A Find of Astronomical Value
In May 2007, Tampa, Florida
based Odyssey Marine Exploration announced it had "mined what could be the richest shipwreck treasure in history, bringing home 17 tons of colonial-era silver and gold coins from an undisclosed site in the Atlantic Ocean." A commercial company dedicated to the discovery of shipwrecks and the recovery of valuable cargoes from them, Odyssey claims on its Web site: "No one knows shipwrecks better than our world-class team of researchers, scientists, technicians and archaeologists. We search the oceans of the world for treasures and artifacts once thought lost forever, so you can share in our amazing discoveries." As well as replicas and souvenirs, the site offers "shipwreck coins" and "authentic artifacts." The latter recently included bottles retailing for $825 and $1,350 from the wreck of the SS Republic.While news of the May 2007 discovery of the shipwreck, which Odyssey code-named the Black Swan, thrilled readers interested in treasure, it did not please the government of Spain. In November 2006 Spanish officials had met with the company at Odyssey's request because "it desired to conduct commercial operations on shipwrecks in which Spain had historical, cultural or other interests." Odyssey specifically asked permission to "recover and sell artifacts from such shipwrecks." Spain refused, citing its adoption of the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Protection of Underwater Cultural Heritage, which does not allow the trading, bartering, or sale or underwater cultural heritage. Moreover, the country's own policy was that "artifacts from archaeological excavations and from underwater cultural heritage are for public benefit and not for private sale."2
Six months later, Odyssey, working out of Gibraltar, announced it had discovered what it called a "colonial-era" ship with a vast amount of silver in international waters. Spain was convinced that, in the absence of permission, the company had gone hunting and found a Spanish shipwreck.
Odyssey was reticent to offer the identity of the wreck or provide a location, citing proprietary concerns and the fear that others would plunder the site even though it was at a depth of approximately 1,100 meters. Following the discovery, the company had recovered the coins and other artifacts and shipped them in plastic buckets from Gibraltar to Tampa on two separate charter flights.
Under the ancient rules of Admiralty (maritime) law, a salvager can rescue property lost at sea by filing a claim to "arrest" or take control of it. After recovering the property under court order, he would receive an award of either a percentage of the find or all of it if no owner could be found. Treasure hunters have used Admiralty law and claims to assert ownership and take possession of artifacts and treasure from sunken ships. Before announcing its discovery, Odyssey had filed an Admiralty claim for the "unidentified shipwrecked vessel, if any, its apparel, tackle, appurtenances and cargo" as located within a five-mile radius of a position provided under seal to the court.
The Litigious Business of Treasure Hunting
Company founder Greg Stemm told the Associated Press that the find had come at a good time for Odyssey. "Rather than a shout of glee, it's more being able to exhale for the first time in a long time," he told reporters. Since 1997, when Odyssey commenced operations, it had made only one other major, treasure-laden shipwreck find, that of the Republic, a sidewheel steamer that sank off the coast of Georgia in 1865. Odyssey had made $33 million on the sale of coins from the wreck by the end of 2006, but the cost of doing business drained the business's coffers, according to its Security and Exchange Commission filings.
A September 2007 article in Fortune magazine noted that Odyssey had spent $12.4 million out of $17.6 million in revenues, netting only $5.2 million in 2004. By 2006 their income had slipped to $5.1 million, and the company had a deficit of $19.1 million.3 The Black Swan find, however, caught the attention of investors; Odyssey's stock price rose 81 percent, to $8.32 per share, on the day that news of the discovery became public.
What has ensued for the company, however, is a legal battle with Spain over Odyssey's actions surrounding the recovery and its custody of the artifacts and treasure from the Black Swan site. During a 2007 Spanish criminal investigation, the Guardia Civil twice seized and searched Odyssey ships as they left Gibraltar and entered the country's territorial waters. Spain filed motions in U.S. district court seeking clarification of the wreck's identity from Odyssey and the return of recovered artifacts if, as Spanish officials suspected, the wreck was a protected site belonging to Spain. The company, meanwhile, sought the court's recognition of its right to claim a percentage or all of the recovered items.
Over the next 2
years, a series of filings and legal proceedings gradually resulted in the release, under court seal, of video footage, still photographs, artifact inventories, and reports related to the Black Swan site from Odyssey's staff. Spain's counsel, James A. Goold of the Washington, D.C., firm of Covington & Burling, selected me as the marine archaeologist to review evidence he had assembled to discover the wreck's provenance. Accordingly, I spent long hours, weeks, and ultimately months reviewing images captured as Odyssey's robotic equipment surveyed the site on the ocean bottom. A photomosaic and hundreds of still photographs of specific features and artifacts provided by Odyssey gradually revealed that the site—initially characterized by the company as jettisoned chests of silver—in fact represented the remains of a large wooden warship of the late 18th or early 19th century that had exploded and sank. The wreckage left a distinct pattern on the seabed of the initial blast zone and the lower hull's subsequent drifting in the aftermath of the explosion.In the photographs and videos, I was able to identify personal effects, Spanish naval guns, ceramic olive jars from the ship's stores, anchors, rudder hardware, ballast stones, and large sections of now-corroded masses of iron fasteners. They once held together sections of the wooden hull but were blasted off the ship and sank. Centuries of immersion in the sea had resulted in marine organisms eating away wood and metal being corroded, but the evidence on the seabed was clear and irrefutable. Odyssey was recovering artifacts not only from a shipwreck site but from a location where a specific Spanish ship's remains lay. Working with Spanish naval historians and naval officers, Goold also assembled a compelling historical record and a navigational reconstruction that decisively proved to the court that the Black Swan wreck was in fact the frigate Nuestra Señora de las Mercedes (Our Lady of Mercy), a commissioned warship of the Royal Navy of Spain.
Ill-fated Voyage Home
Built in Havana in 1788, the Mercedes had an active naval career that included combat and the transportation of troops, specie, and government officials. It included service from 1796 to 1802, when Spain, as an ally of France, fought Great Britain. Despite the March 1802 Treaty of Amiens, which resulted in temporary peace among Europe's powers, Spain remained allied with France and was required to support its neighbor financially. Following a September 1802 order from the prime minister of Spain to the Spanish Navy to send warships to secure specie and other valuables from the country's South American colonies, the minister of the navy dispatched the Mercedes and another warship, the Clara, to Peru to bring back "the specie and effects of the Royal Treasury which are ready in America."
The Mercedes arrived in the viceroyalty's port of El Callao as hostilities resumed between France and Britain. Accordingly, her departure was delayed until 31 March 1804, and when she left, the ship was also carrying valuables belonging to Spanish citizens in the colony who sought the navy's wartime protection of their property. A country using its navy to transport and protect the property of its citizens as well as state funds is a long-established practice (a U.S. law statute authorizes the Navy to carry "gold, silver or jewels").
After making her way to Montevideo, the Mercedes joined a squadron of Spanish warships for the voyage home. The group was off the southern coast of Portugal, headed for Cádiz, when a British squadron hailed it on 5 October 1804. The Royal Navy ships had orders to intercept "Spanish homeward-bound Ships of War" with "treasure on board" and escort them to Britain, while sparing "Merchant Ships of That Nation" from seizure. When the Spanish demurred surrendering, the British insisted, and as one Spanish participant later wrote, "The battle commenced soon after; our frigate received the first discharge by larboard; the salute was answered . . . [when] the devil went and set the magazine of the Mercedes afire, which blew up in a whisper."
Another account noted that the Mercedes cracked open like an egg and spilled her contents, including treasure, stores, and all but some 50 of the crew, into the deep. Among the dead was the family of Spanish Navy Captain Diego de Alvear y Ponce de León, who watched in horror from another ship as his loved ones were immolated. The loss of the Mercedes and the seizure of the surviving ships and their cargo of state specie induced Spain's King Carlos IV to declare war on Great Britain on 12 December 1804. Less than a year later, Spain, as France's ally, fought and lost the Battle of Trafalgar and entered a decade of disastrous guerrilla warfare that had a profound impact on the nation's history.
Current Judgment
After carefully considering the case, Judge Merryday of the U.S. District Court for the Middle District of Florida ordered that the coins and other artifacts Odyssey recovered from the site be returned to Spain. "The ineffable truth of this case is that the Mercedes is a naval vessel of Spain and that the wreck of this naval vessel, the vessel's cargo, and any human remains are the natural and legal patrimony of Spain and are entitled in good conscience and in law to remain undisturbed in perpetuity absent the consent of Spain and despite any man's assertion to the contrary," he wrote in his 22 December 2009 order.
The judge's decision cited the evidence presented by Spain, testimony by some of Odyssey's experts that agreed with Spain's arguments on key points such as the location of the site being where "extant documents place the Mercedes," and aspects of the material record on the seabed being evidence of an explosion and subsequent sinking of a large wooden ship of the period. The recovered coins were also key pieces of evidence: All were Spanish, from the country's crown colonies, and none was dated later than 1804. Judge Merryday had followed the recommendation of U.S. Magistrate Judge Mark A. Pizzo, who reviewed the evidence and issued a detailed report on 3 June 2009. Rejecting the company's claims that the identity of the shipwreck had not been determined, Pizzo had written, "Odyssey set out to find the Mercedes and found it."
The case is now under review by the Court of Appeals for the Eleventh District, but Spain is confident it will be decided in its favor as a matter of international law and principle. The flag vessels of sovereign powers, including the warships of the United States, are immune from legal actions such as Admiralty claims. Odyssey required Spain's permission to salvage artifacts from the Mercedes, which it did not receive. The U.S. courts will likely declare they have no jurisdiction in the matter, resulting in a court order requiring that the artifacts be returned to Spain within ten days.4 Wall Street appears to agree that Odyssey has little chance of prevailing; the company's stock price has declined well below what it was before the discovery.
The Broader Problem
The matter of the Mercedes' treasure will likely come to a conclusion within the next year, but the larger issue of treasure hunting and the recovery of artifacts from shipwrecks for commercial gain will remain problematic. Odyssey is already on the hunt for other shipwrecks, and it is not alone. Treasure hunting is a problem for countries whose sunken vessels, including sovereign warships, may be subject to unlicensed salvage despite their legal status, historical or archaeological importance, or the fact that they may be war graves. While some countries have and will continue to license commercial recovery operations on their warships, many others refuse to do so, particularly those, like Spain, that follow the UNESCO Convention on the Protection of the Underwater Cultural Heritage.5
The professional archaeological community also objects to commercial underwater recovery operations and has decried treasure hunting since the earliest days of archaeology being practiced underwater. Whether inspired by an individual's keen personal interest and desire for souvenirs or by a corporation's or group of investors' desire to realize a profitable financial return, treasure hunting is a longstanding tradition that dates back centuries. It predates the science of archaeology, in which sites are carefully and systematically excavated, evidence and artifacts are recovered and subjected to laboratory analysis and preservation, and the findings are published for the review of other scientists and the public. And most important, all of the archaeological "evidence"—the artifacts, soil samples, field notes, and photographs—are retained for subsequent scholars to re-analyze and reassess as new methods, scientific breakthroughs, and evidence from other sites compel a fresh look at it.
Some treasure hunters question the value of retaining artifacts for future analysis, but doing so lies at the heart of professional, scientific archaeology. It is also basic science. Crime labs are supposed to retain all evidence from a case, even one in which a suspect has been tried and convicted. The introduction of DNA analysis has resulted in a wide number of instances in which suspects found guilty and imprisoned have been subsequently exonerated and released, or others in which a guilty verdict has been confirmed. Basic, sound procedure in the crime lab also applies to the archaeology lab, and archaeologists are naturally opposed to selling the "evidence" to pay for the dig.
The Example of Amphorae
The archaeological community's professional, philosophical view on retaining artifacts also pays off in terms of knowledge. Trace element analysis of ceramics can now determine the point of manufacture for an amphora (an ancient two-handled jar or vase) or a porcelain plate. Present-day DNA analysis of ancient pollens and plants can plot the distribution of ancient and even more modern foodstuffs around the world by ships. In a recent project, archaeologist Brendan Foley of MIT and Woods Hole Oceanographic Institution, working with colleagues from Sweden and Greece, raised 2,400-year-old amphorae from 70 meters underwater in the strait between the Greek island of Chios and the Turkish mainland. Their analysis of DNA residue inside "empty" jars revealed that some had been filled with an olive oil and oregano mixture and at least one other amphora was carrying wine.
Similar study of amphorae in archaeological storage as well as those still on the seabed, Foley said, can now "tell us what was being traded and something about the total agricultural production of a country." Archaeologists working with other scientists to analyze artifacts and their DNA residue are even starting to conduct more detailed studies of ancient climate change and the economic and trade systems of early civilizations. Thanks to Foley's work, we now have the means to better understand details of the ancient world's seafaring trade, economies, and "global" trade—the last because DNA evidence inside an amphora can prove contact and trade between distant civilizations.
Highly prized by collectors and stripped from many ancient wrecks, amphorae are sold on both the open and black markets. Advocates of the commercial sale of these antiquities argue that they were mass-produced and are non-unique. Therefore, instead restricting them to museum displays or archaeological storage, they should be available to anyone with adequate funds. Foley's breakthrough demonstrates why they should not be sold to the highest bidders. Archaeologists studying coins from antiquity through to the colonial era agree, noting that in the pre-industrial age, each coin was unique and has a scientific and human story to tell. These are not isolated opportunities; most artifacts recovered by archaeologists have many meaningful stories to tell.
Smash and Grab
Archaeologists have also decried the practices of treasure hunters who have focused on gold or other valuable commodities in a shipwreck and conducted hasty, shoddy excavations that in some cases amounted to "smash and grab" operations. In some cases, the fragile evidence of the past that yields significant scientific information costs too much for a treasure hunter to carefully recover, preserve, and analyze. Commercial firms with an eye on the bottom line and shareholder returns have destroyed or cast aside scientific value for a quick return on gold or silver.
Archaeologists and historians still remember with horror the case of HMS DeBraak, a British warship that sank off Lewes, Delaware, in 1798, allegedly with a Spanish treasure on board. Working under permit from the State of Delaware, a treasure-hunting company discovered the ship's wreckage—a fragile archaeological site as well as a war grave—and in 1984 began excavation after gaining control of the site through an Admiralty arrest. Human remains were destroyed, artifacts requiring extensive and costly conservation were thrown overboard from a salvage barge, and other recovered items were used as collateral for bank loans, in contravention to the law. Driven by their desire to find treasure and frustrated by the time and cost involved, the salvagers eventually hauled the partially excavated hull out of the sea, breaking it and spilling its contents back into the water.
Once the broken hull was finally on a barge, the salvagers clamshell-dredged the seabed, dumping the bucket-loads onto another barge where backhoes piled the "spoil" onto a highway gravel separator. The "DeBraakle" spurred Congress to pass the Abandoned Shipwreck Act and assert some control. The sad irony was that the 26,000 retained artifacts—including only 650 coins (there was no treasure)—cost more than $3 million to recover and was appraised at only $298,265. Much history was lost and a war grave was despoiled, and in the end, the effort turned out to be a bad investment.
Not all treasure hunters operate like those who ravaged HMS DeBraak. Odyssey Marine Exploration, for example, maintains that it works with qualified archaeologists and employs high-tech equipment and a careful approach to its undersea efforts. However, the objection that I and my colleagues have is akin to a debate in medical circles: Does the competence of a surgeon, even a brilliant, ground-breaking one, justify harvesting organs from living patients to be sold to the highest bidder
An intact archaeological site has great potential to yield important information about the past. It should be carefully excavated so that our knowledge of history is augmented or revised.Many shipwrecks are under threat from trawling, in-shore dredging, and commercial firms that seek to mine them for their riches, but that should not justify allowing treasure hunters to have at them in the name of free enterprise and to save only a percentage of history for museums. There is no need to do so. While some treasure hunters conduct clever public-relations campaigns, arguing that only they have the tools and the funding to "rescue" the past, they do not. A number of archaeologists and organizations in the United States and abroad have the capacity to do the work, are scientifically and culturally motivated, and have non-commercial financial backing that includes not-for-profit status, grants, and government support.
Institutes and programs adhering to the UNESCO convention that have demonstrated the ability to conduct scientific research at extreme depths and are working worldwide to conserve and study undersea wrecks include the University of Rhode Island's Institute for Exploration, Woods Hole Oceanographic Institution, the Waitt Institute for Discovery, and the Institute of Nautical Archaeology (INA), of which I am the president and CEO. INA has existed for more than four decades and has conducted surveys and excavations of wrecks from various periods of history at the bottom of nearly every one of the seven seas. Along the way, it excavated the oldest shipwreck yet discovered, a vessel found off Uluburun, Turkey, that dates from the Bronze Age (1350 B.C.).
Yielding Treasured Knowledge
The Uluburun wreck yielded evidence not only of the oldest seagoing ship yet discovered, but also artifacts and raw trade commodities that represent 12 separate cultures from distant places such as Equatorial Africa, the Near East, Cyprus, and the Baltic. Recovered artifacts included very fragile items, such as the shattered remains of the world's oldest wooden book, woven baskets, ivory cosmetic containers, and ostrich eggs. Ceramics, copper ingots, semiprecious stone beads, amber, and the largest collection of gold jewelry from an ancient shipwreck, including a golden scarab from Egypt's fabled beauty Queen Nefertiti, were also carefully raised from the depths.
When the Uluburun site was discovered, fear of its being looted to recover and sell the ancient cargo of copper ingots for scrap was great. But what followed was a careful 11-year excavation that was funded entirely by private donations, grants, and gifts. Under the direction of George F. Bass and Cemal Pulak, volunteers from INA and its partners at Texas A&M University's Nautical Archaeology Program conducted the work, and after more than 22,000 hours of diving, all traces of the ship and her artifacts that were accessible to the team were recovered. Laboratory analysis of the items continues to yield discoveries that are rewriting our understanding of Bronze Age maritime trade and commercial and cultural exchange between ancient empires like Tutankhamun's Egypt and the Hittites.
These artifacts and insights have also been shared with the public. Items from the Uluburun shipwreck comprise a major exhibit at the Bodrum Museum of Underwater Archaeology, a self-sufficient institution INA helped establish that is the most popular archaeological museum in Turkey. Meanwhile, a number of the Uluburun artifacts were recently displayed at New York's Metropolitan Museum of Art as the centerpiece of an exhibition on international exchange in the Bronze Age. And numerous academic and popular publications, including National Geographic, as well as documentary films, have shared the results of scientific and historical study of the Uluburun ship and her contents.
All of us familiar with the site and its artifacts know from experience what would have happened if treasure hunters had worked the Uluburun wreck. Some nice, shiny trinkets would have been sold at auction, a number of other artifacts
perhaps a shattered ceramic, a broken ivory container, or the world's oldest book would not have been found or would have been tossed aside because the bottom line or the flash of gold got in the way of science. No museum displays or rewritten history books would have resulted from the shipwreck, although a few bank accounts would have been fattened. After seeing the results of the Uluburun shipwreck being excavated by archaeologists who believe in maximum public benefit—not support for the few and the greedy—I am grateful the treasure hunters never found the site. Sadly, they are out there finding others wrecks, and the fight continues on the ocean bottoms, in the media, and in the courts to save the past.
1. That figure is based on a blanket assertion of a $1000 value per coin for 500,000 coins.
2. These statements are taken from Spain's Motion to Dismiss Odyssey's claim to the wreck, filed with the District Court on 22 September 2008.
3. Fortune's Tim Arango filed his story, "Curse of the $500 Million Treasure," on September 11, 2007. It is available online at http://money.cnn.com/2007/09/10/news/companies/odyssey_treasure_fortune.fortune/index.htm.
4. This legal principle has been argued successfully by the United States in the matter of the Civil War raider CSS Alabama, whose wreck lies in French waters, the U.S. brig Somers, whose wreck lies in Mexican waters, and in a variety of other cases. U.S. Navy policy and U.S. law now protect any and all sunken naval or other military craft, including aircraft and missiles.
5. Britain authorized the recovery of gold from the World War II wreck of the cruiser HMS Edinburgh, a war grave.