An appellate court has upheld a lower court decision that ordered American treasure-hunter Odyssey Marine Exploration to return to Spain some 594,000 gold and silver coin valued at roughly $500 million recovered on the ocean floor from a sunken Spanish Galleon. The United States government supported the Spanish in the claim and the coins are supposed to be returned to Spain within ten days.
Here is how the Court described the case in an earlier ruling:
Odyssey is a deep-ocean exploration and shipwreck recovery business. In 2006, Odyssey began what it called the Amsterdam Project, researching ships that sank in a heavily-traveled area, which included an area off the coast of Gibraltar. Odyssey developed a list of target vessels to search for, one of which was the Nuestra Senora de las Mercedes (Mercedes), a Spanish vessel that sank in 1804. According to Odyssey, it “recogniz[ed] that Spain may have had a cultural (if not legal) interest in vessels that may be located within the Amsterdam area, [and] invited Spain to participate in the project.” Odyssey’s Resp. to Spain’s Motion to Dismiss, Dkt. 138 at 3. Odyssey’s CEO and counsel then met with a representative from Spain’s Ministry of Culture. What occurred at the meeting is disputed, but both Odyssey and Spain agree Spain did not give Odyssey approval to salvage any sunken Spanish vessels.
In March 2007, while Odyssey was surveying the Amsterdam area, Odyssey discovered a shipwreck in international waters 100 miles west of the Straits of Gibraltar at a depth of 1,100 meters. The remains of the shipwrecked vessel were spread over the seabed in an area 368 meters long and 110 meters wide. Odyssey conducted a detailed survey of the shipwreck before disturbing any artifacts on the ocean floor and then began to recover objects from the site. Odyssey ultimately recovered approximately 594,000 coins and a number of other small artifacts.
The company claimed that the size of the debris field made the origin of all of the coins impossible to determine. However, the U.S. courts disagreed. The company called the ship The Black Swan but the court found the identity of the vessel was the Nuestra Señora de las Mercedes sunk by the British off Cape St. may, Portugal in October 1804.
The court found that the company was looking for the Mercedes and found the Mercedes — noting that all of the coins were minted in Lima, Peru and all of the cannon matched those believed to be on the Mercedes.
Here is how the district court described the life and demise of the ship:
The historical prelude to the Mercedes’s fateful, October 5, 1804, encounter with a British squadron near Cape Saint Mary, Portugal is well documented and is the obvious starting point for correlating the res to the Mercedes. Within a decade, Spain fought with the British against revolutionary France (Guerra de la Convencion or War of the Convention — 1793-1795); ended those hostilities with the Peace of Basel (1795); quickly signed another treaty pledging support to France (Treaty of San Ildefonso — August 1796); and reaffirmed this alliance in a second treaty that demanded it cede Louisiana to France (Second Treaty of San Ildefonso — 1800). (Doc. 131, Ex. C PP18-19.) In 1802, after years of constant strife, the European powers settled into a temporary respite with the Treaty of Amiens. (Doc. 131, Ex. C P 20.) But this lull [**17] did not allay Spain’s concerns about France. Fearing France’s invasion, yet knowing that Britain would consider Spain’s actions a cause for attack, Spain sought to appease France by secretly agreeing to pay a monetary subsidy in lieu of furnishing the military aid required by the first Treaty of San Ildefonso. (Doc. 131, Ex. C PP 21-22.) In short, Spain needed all its resources for these tumultuous times; accordingly, it dispatched frigates to collect “specie and precious produce” from its American Viceroyalties. (Doc. 131, Ex. A at PP 15-16.) One was the Mercedes. (Doc. 131, Ex. A at P 15.) By the time the Mercedes reached El Callao (near Lima, Peru), France and Britain were already at war. (Doc. 131, Ex. A at P 14; Doc. 131, Ex. C at P 24.) Madrid’s June 8, 1803, dispatch to the Viceroy of Peru (the Marquis of Aviles) captures the fluidity of the political events:
The political circumstances in Europe and the declared War between England and France require every Commander of the King’s vessels to increase their care and vigilance to be prepared just in case H[is] M[ajesty] found himself in the difficult circumstance of taking part in this [conflict] …; but in the meantime and to not [**18] endanger the existing specie in that Realm and give time to examine [*1133] the state that European political affairs are acquiring, as prudence dictates, H[is] M[ajesty] has found it proper to resolve that Y[our] E[xcellency] suspend the departure from Callao of the frigates, Asuncion, Clara, and Mercedes, which have gone [there] for specie ….
(Doc. 131, Ex. C at P 24.)
The following summer, the Mercedes and three other frigates (the Clara, the Medea, and the Fama), set out from Montevideo bound for Cadiz. (Doc. 131, Ex. C at PP 27-28.) Spain undoubtedly anticipated a conflict with the British. (Doc. 131, Ex. C at P 27.) On the morning of October 5, 1804, only a day’s sail from Cadiz, a British squadron forewarned of the mission intercepted the four frigates south of Cape Saint Mary. (Doc. 131, Ex. A at P 23; Doc. 138, Ex. E at Annex 27.) The British demanded their surrender; the Spaniards refused.
As soon as the [British] officer returned with an unsatisfactory answer, I fired another shot a-head of the Admiral, and bore down close on his weather-bow. At this moment the Admiral’s second a-stern fired into the Amphion; the Admiral fired in to the Indefatigable; and I made the signal for close battle, which was instantly commenced with all the alacrity and vigour of English sailors. In less than ten minutes, la Mercedes, the Admiral’s second a-stern, blew up along-side the Amphion, with a tremendous explosion.
Captain Graham Moore, Indefatigable 6
The force of the blast blew part of one of her quarterdeck guns into the Amphion’s rigging. 7 More than 250 perished, including its Captain (Jose Manuel Goycoa) and the family of Second Squadron Leader Diego de Alvear. (Doc. 131, Ex. A at PP 9, 25.) The remaining Spanish frigates surrendered, were taken to Great Britain, and impounded. (Doc. 131, Ex. A at P 26; Doc. 131, Ex. D at P 19.) Two months later, Spain declared war against Britain and sealed its fate by an allegiance to France. (Doc. 131, Ex. A at P 27.)Of course, that battles pales in comparison to the carnage in federal court over ownership of the coins.
The long litigation involved some interesting historic cases and rivaling claims. It was Chief Justice Marshall who first ruled on the underlying doctrine of sovereign immunity in a case involving another Napoleonic War vessel — finding that the courts of the United States lacked jurisdiction over an armed ship of a foreign state in a United States port. The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 146-47, 3 L. Ed. 287 (1812). He enforced a rule that sought to protect the “perfect equality and absolute independence of sovereigns, and th[e] common interest impelling them to mutual intercourse.” Thus the case turned on the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.S. § 1602 et seq. The lower court held:
Unquestionably, the Mercedes is the property of Spain — constructed in 1788 by Navy Engineers in the shipyard of the Spanish Navy in Havana, Cuba; commanded by officers and crewed by sailors of the Royal Spanish Navy throughout its service; and designated as a Spanish frigate of war. (Doc. 131, Ex. A at PP 7, 9, 12). It remains on the Royal Navy’s official registry of ships. (Doc. 131, Ex. [**38] A at P 7.) As such, 1609’s plain reading limits Odyssey to arguing the Court has jurisdiction under “existing international agreements” or as permitted by 1610 and 1611. None of these exceptions apply here, as Spain urges and Odyssey’s silence concedes. 17 Instead, Odyssey sidesteps § 1609’s exceptions by claiming: § 1609 does not shield property outside the United States; Spain must actually “possess” the res; the cargo should be partitioned to satisfy the descendants’ claims to the private lots; and other provisions of the FSIA deny Spain sovereign immunity from in personam claims. These contentions are without merit as all evade the FSIA’s goals, its statutory scheme, and the special status accorded warships per the various treaties and agreements § 1609 necessarily incorporates.
This is a video of the actual claims of the Odyssey sinking in the Florida courts.
Source: Daily Mail
I would have taken the entire treasure and thrown it back into the ocean. Shame on the US Courts and any other courts that would prohibit salvaging in international waters.
Larken you always seem to say it better. 🙂
Finders fuckin’ keepers. They should have kept their mouths shut and melted the SOB’s
‘What occurred at the meeting is disputed, but both Odyssey and Spain agree Spain did not give Odyssey approval to salvage any sunken Spanish vessels.’
BOTH acknowledged the lack of approval….Odyssey undertook the risk unilaterally…. does that not count at all?
@Bron: You do not seem very aware of how businesses work. The business owner will not stop employing, an intelligent owner focused on profits does not employ “extra” people he can let go, he has already optimized his workforce, and the number of people he employs is a function of the amount of work he needs to get done to serve his customers. If he stops employing, he loses customers over his inability to serve them in a timely manner.
If ALL employers have to pay some additional tax, then there is no point at which the employer will stop paying; they will ALL have to raise their prices to cover it. The customers will not leave, because ALL the prices are higher, so they will stick with their favorite vendor: They know the higher price is not his fault, and there is no vendor that doesn’t have to deal with the added expense, so there is nothing the customer can do about it. The vendor can keep making the same amount of money he was making before.
Business owners are forced into rationality. For the vast majority it is not easy to either start a business or stop it, and for the vast majority a regular job is not a viable alternative that would earn them more money, even if they could get a regular job. For example, I know restaurant owners earning in the low six figures that are not really qualified to do much besides cook and manage a restaurant, normally a $40K a year job. I know builders that earn in the high six figures that are pretty much just construction site general managers, also not a very high paying job. My neighbor down the street owns a business with several employees, but his only objective qualifications are a high school degree plus he can drive bulldozers and ditch diggers. My neighbor is just a CPA that struck out on his own, and is earning more than twice what he used to earn.
All of which is to say, they have quite a ways to go before their margins shrink so much they would ditch their business and get a job. Plus the harder it IS to get a job, the less likely they are to think a job is an attractive alternative. As long as they can earn close to what a job would pay, the psychic benefit of being the boss and having the power to do what they think is right will keep them in business. Real business people ultimately act rationally, they do not quit out of spite, or to pout or protest some ideology. They only quit when they have some alternative that looks better, and for most self-made small businessmen, their skill set (being in charge and running a business) is not in that much demand, so their alternatives are not that attractive, objectively speaking.
This is just another confiscation action by our fascist oligarchy and the corrupt Judges they employ.
Fiat currency is a scam that allows governments to murder, rape and pillage it’s Citizens, hense having killed directly their own Citizens to the tune of some 170 million people in the 20th century alone and that does not include military personnel in foreign wars. There is plenty of gold – it is devisable your morons. The Central bankers have caused the United States to be in war, recession or depression 50% of the time in the 20th Century. The federal Reserve bank of the U.S. should be abolished as Ron Paul says and the only one who has the guts to say it.
will the english be required to return the three frigates?
mespo….
Doesn’t maritime law state that if its in international waters that it belongs to the country of origin….But then… doesn’t Peru being a Spanish Colony at one time make it Spains’………
I thought mislaid property belonged to the owner of the locus in quo if found where the owner likely intended to leave it and the rightful owner was nowhere to be found. Since putting heavy gold on those rickety, old, wooden ships presupposes the very likely possibility that it would end up on the bottom and there are no more king or queens in Spain who wield any real power, I say: Give it back to Neptune!
Tony C:
The taxes which would have to be levied would be too burdensome. There is a point at which people will not be able to pay. Employers match the personal contribution, at some point employers will stop employing.
You cannot just add another tax without thinking about the long term and short term consequences.
Give it back to Peru
The gold doesn’t belong to “Spain.” Spain is a place. Places can’t own things. What is actually being claimed is that the politicians of Spain today should get the gold, because after all, it was other politicians of Spain, now long since dead, who stole it fair and square from productive people, whether in Spain or elsewhere. (No “government” produces wealth; whatever any “government” has, it got by taking it from the productive.) When described with literal accuracy, the claim sounds a little less reasonable: “We, the current parasitic ruling class of Spain should get the gold, even though we did nothing to earn it (now or before), and had nothing to do with it being found or recovered. It belongs to us simply because a different set of political crooks–a now defunct parasitic ruling class–already looted it from others.” Those poor parasites. They shouldn’t have to steal the same loot TWICE, should they? I wonder, if someone finds an old sunken pirate ship containing treasure, will anyone argue that the loot should be given to some modern gang of pirates? That’s basically what’s being argued here. If the finders can’t keep it, give it back to the descendants of those who were robbed. And if you can’t do that, throw it back in the ocean. Let the parasites try to find it themselves.
@Bron: Social Security is not an unfunded liability, any more than a person’s mortgage or car are unfunded liabilities. People rely on their future income to pay their future mortgage or loan payments; the USA relies on its future income to pay its own liabilities.
We have taxes in place that fund those programs already, and we can assess new taxes as needed. There is nothing that says those new taxes have to be on payroll or personal income; they could be sales taxes, corporate income taxes, tariffs on foreign goods, whatever the majority decides is appropriate. Or we can print the money, which I have noted is mostly a wealth tax on those with cash assets and those that act as lenders, like credit card companies and banks.
People might worry about how they will make future payments, the government really doesn’t have to worry: It will always have income.
Pirate governments.
TreeMonkey,
Remember its the last person to steal it that can claim an interest in it….seems to work that way….Don’t believe me….Look at the History of the US….
Since the coins was minted in Lima, Peru, where is THAT countries interest here? Isn’t this gold mined from Peru? Is there an South American Indian interest here?
Why sure there is. Time for another law suit. That and something along the order of compensation or finder’s fee expense replacement.
Tony C:
“@Bron, puzzling: The US is not going to default at all. Our national debt is about one year’s worth of GDP.”
I would definitely agree with you if that was the case. I think you are forgetting about all of the unfunded liabilities such as Social Security and other programs. I have heard upward of 120 trillion dollars.
There is no social security lock-box and we sell ourselves paper to cover it.
Personally I hope you are right.
Does Spain owe any other country any money? Spain is on the Euro. They cant claim the gold is their currency.
The guys ought to put the gold on a boat and leave New York Harbour for Spain. Then, in the deepest part of the ocean they spring a leak and the boat sinks. Sinko de maio. Give it back to them on a platter.
Where were the Spanish divers all of these years? The defendants said that the Spanish could not muster ten divers who could swim well enough to dive for their own wreck.
I agree with Gene
(Gene, Would have noted I agreed with you except I was writing, drinking latte, answering the phone, and didn’t see your post till afterwards.)
I like the suggestions/questions coming from Demdude and Jay if for no other reason than that it really sets the historical debate on its heels.
Why couldn’t the treasure hunters co-counsel with Peru; re-frame the claim and go after Spain on original rights issues? If the gold is an original Peruvian natural resource, looted by the Spaniards and simply branded with their mark … wouldn’t Peru have some standing in the matter?
Now that would be fun. Imagine the court cases ensuing every time a treasure is found …