11th Circuit Ruling Deals a Big Blow to Odyssey Marine

The explosion of the Nuestra Senora de las Mercedes

The 11th Circuit has ruled that the objects brought up from the wreck initially code-named the "Black Swan" should be released immediately to the custody of Spain. In response Odyssey's stock is dropping rapidly.

In a press release Odyssey has said it will ask the full 11th Circuit to rehear the case en banc with the full complement of Federal Judges rather than the three judge panel which decided this appeal.

Embassy Cables Discuss Odyssey Marine, and a Nazi era Dispute

So the World is buzzing with all the revelations, mundane and otherwise, offered by the release of diplomatic cables via wikileaks. This has touched all manner of foreign and diplomatic relations, even cultural property and heritage issues. The Guardian has reprinted and summarized a series of recent cables which detail meetings between US officials and Spanish officials between 2007 and 2010. The various positions and points of concern related here really don't come as much of a surprise. What is perhaps heartening to note is the importance of these issues at the highest levels of international relations. Nations take these disputes very seriously.

It is certainly possible to over-emphasize the importance of these, but both parties certainly seem to have very different priorities. In a 2008 cable, Spanish Culture Minister Molina is concerned with the then-emerging dispute with Odyssey Marine, while the American Ambassador focuses on Spain's dispute with Claude Cassirer. As the embassy cable summarized,

The Ambassador stressed the USG's interest in direct discussions between the Spanish government and Claude Cassirer, the AmCit claimant of a painting by Camille Pisarro ("Rue St. Honore") in the Thyssen Museum. The Ambassador noted also that while the Odyssey and Cassirer claim were on separate legal tracks, it was in both governments' interest to avail themselves of whatever margin for manuever they had, consistent with their legal obligations, to resolve both matters in a way that favored the bilateral relationship. The minister listened carefully to the Ambassador's message, but he put the accent on the separateness of the issues. Molina said that no Spanish government could return the painting (if this is what the claimant wants). To begin with, while the minister presides over the board that manages the Thyssen Museum's collection, the minister could not oblige the board to return the painting without a (Spanish) legal judgment. The minister added that paying compensation, as the British government has reportedly done in a number of cases, also posed legal problems.

1. Giles Tremlett, WikiLeaks cables: Art looted by Nazis, Spanish gold and an embassy offer, The Guardian, December 8, 2010, http://www.guardian.co.uk/world/2010/dec/08/wikileaks-us-spain-treasure-art (last visited Dec 9, 2010).

Profile of Claude Cassirer

In September of last year the 9th Circuit held that Claude Cassirer can pursue a case against the Kingdom of Spain over this work, Rue St.-Honoré, Après-Midi, Effet de Pluie, painted by Camille Pissarro in 1897.  In a profile of Cassirer in the L.A. Times, the 88 year-old argues the Spanish "have been most unfriendly, not cooperative in any way," with respect to his claims for restitution.  The 9th Circuit Court of Appeals will hear the appeal again en banc, with an 11 judge panel, sometime in the coming months.  The work had been taken from Cassirer's grandmother in 1939 before she fled Munich.  The Spanish government purchased the painting in 1993 as a part of the Baron Hans-Heinrich Thyssen Bornemisza's collection.  The work has been valued now at $20 million. 

Spain paid the baron $50 million in 1988 to lease his collection for a decade, and halfway through bought it outright. The baron had designated Spain for his prized collection, valued at more than $2 billion, an apparently sentimental gesture honoring the last of his five wives, a former Spanish beauty queen. Thyssen-Bornemisza died in 2002.

"The Thyssen-Bornemisza Collection Foundation thoroughly reviewed the complete historical record on Mr. Cassirer's alleged claim and respectfully denied it," said Thaddeus J. Stauber of Nixon Peabody LLP's Los Angeles office, which represents the foundation.

Citing the statute granting foreign states immunity from U.S. lawsuits except under a few defined conditions, Stauber said "we do not think that the case properly belongs in the U.S. courts."

1.  Carol J. Williams, Pissarro masterpiece travels a twisted history, L.A. Times, April 7, 2010.
2. Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009).

Odyssey/Spain Dispute Headed to 11th Circuit Appeal

The dispute between Odyssey Marine Exploration and Spain over a shipwreck which was sunk in the early 19th Century will now likely be headed for appeal.  Federal District Court Judge Steven Merryday has issued an order that has adopted the Federal Magistrate's Report and Recommendation.  In his order Judge Merryday stated a separate opinion would "add only length and neither depth nor clarity (and certainly not finality) to this dispute."  Though this is a win for Spain, it also means the 11th circuit will now hear an appeal.   Back in the Spring, federal Magistrate Pizzo held the Federal District Court lacked jurisdiction over the dispute and the property should be returned to Spain. 


As I wrote then, though Odyssey Marine attempted to hide the true identity of the wreck, initially code-naming the wreck the Black Swan, there was enough information to conclude the coins came from the "Nuestra Senora de las Mercedes", a warship which was carrying treasure back from Peru when it was sunk by the British off the Spanish coast in 1804. Spain, soon declared war on Great Britain, a point which may be lost in all this talk of the treasure. This treasure was an important piece of heritage, and all the talk of Odyssey's share prices, and the rich treasure haul shouldn't distract us from why these objects are protected, and why Spain fought so vigorously to have them declared the owner.This latest development then is not terribly surprising.  The case involves some complex issues of international admiralty law, and half a billion dollars in gold and silver coins.  It should be a fascinating appeal, as the 11th Circuit will set a precedent governing how these salvors can explore and remove historical objects from the ocean floor.

Odyssey Marine has a press release here.

James Thorner, Odyssey Marine's treasure tangle with Spain moves to appeals court,  St. Petersburg Times, Dec. 23, 2009.

Richard Mullins, Sunken treasure case headed to federal appeals court, Tampa Tribune, Dec. 23, 2009.  

Spain Prevails For Now

"It is this comity of interests and mutual respect among nations . . . that warrants granting Spain's motions to vacate the Mercedes's arrest and to dismiss Odyssey's amended complaint". So concludes US Magistrate Judge Mark Pizzo yesterday in Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel.

Odyssey Marine has lost in its bid to petition a US court for ownership of the coins, and Spain has prevailed—for now—in its suit to regain half a million gold and silver coins from Odyssey Marine Exploration which recovered them from a wreck in the Atlantic Ocean. The recovery of the coins, thought to be worth as much as $500 million was announced, though the location of the wreck, and information about the wreck was kept secret. In response Spain filed suit, and seized some of Odyssey's other vessels. UNESCO condemned the recovery, and much has been written and discussed about this recovery, considered perhaps the richest haul ever recovered from a wreck.

In the judgment which I've embedded below, the District Court held it lacked jurisdiction over the dispute and the property should be returned to Spain. Though Odyssey Marine attempted to hide the true identity of the wreck, initially code-naming the wreck the Black Swan, the court held that there was enough information to conclude the coins came from the "Nuestra Senora de las Mercedes", a warship which was carrying treasure back from Peru when it was sunk by the British off the Spanish coast in 1804. Spain, soon declared war on Great Britain, a point which may be lost in all this talk of the treasure. This treasure was an important piece of heritage, and all the talk of Odyssey's share prices, and the rich treasure haul shouldn't distract us from why these objects are protected, and why Spain fought so vigorously to have them declared the owner.

So these coins may be destined for Spain, finally, even though these coins were initially taken from Peru, which also asserted an interest. This has been a protracted dispute, and one that may indeed continue at the appellate level. It will be interesting as well to see how much continued involvement Peru has with the appeals process, or if Spain and Peru can come to an agreement about what can or should be done with the objects.

Spain's Culture Minister Angeles Gonzalez-Sinde is quoted by the BBC, calling the decision "a very important precedent for all future undersea discoveries". Gregg Stemm, CEO of Odyssey Marine said "I'm confident that ultimately the judge or the appellate court will see the legal and evidentiary flaws in Spain's claim, and we'll be back to argue the merits of the case."

But for now, US Magistrate Judge Mark Pizzo has the final word, concluding his recommendation, "More than two hundred years have passed since the Mercedes exploded. Her place of rest and all those who perished with her that fateful day remained undisturbed for centuries - until recently. International law recognizes the solemnity of their memorial, and Spain's sovereign interests in preserving it."

For more on the company this older piece from Voice of America is pretty interesting. This suit is really about the continued viability of this kind of business, and the perils of doing so without the support of organizations like UNESCO or other nations of origin:

"We actually invited the Spanish government to send Archaeologists along."

So said Greg Stemm on the Today show last week discussing the ongoing dispute between Odyssey Marine and Spain. The interview was primarily an excercise in corporate self-promotion for the upcoming special on the sister network at 10 p.m. (ET) on Thursday, April 2, on the Discovery Channel’s “Treasure Quest.” Nonetheless there were some interesting comments made, though there was very little attention paid to archaeology or the importance of preservation of the site and the remains of the vessel.

The odd thing about this dispute and the Today segment in particular are the insistence on painting the controversy in terms of pirates and buried treasure and other romantic ideas. The reality of underwater heritage is far mor nuanced and important.

A few excerpts:

“The ship is the history and national patrimony of Spain, not a site that may be covertly stripped of valuables to sell to collectors. Odyssey was well aware that it is off limits,” said Spain’s American attorney in the case, James Goold.

Odyssey, a publicly held company that is a leader in deep-sea archaeology and treasure recovery, found the vast trove on a 2007 expedition in what it says are international waters off Portugal and the Straits of Gibraltar. The coins were spread over an area the size of several football fields at the bottom of the ocean.

After filling a chartered Boeing 757 with the coins and shipping them to Florida, Odyssey returned to the area to further investigate the site. There they were boarded by a Spanish warship, and the ship and crew were held for several days in a Spanish port.

Stemm concedes that the treasure may have been that carried by the Mercedes, but said that the identity of the vessel has not been established. One difficulty in doing that is that the Mercedes was hit in its powder magazine during the battle and blew up, leaving little actual wreckage at the bottom of the ocean.

Even if it was the Mercedes, Stemm said, that still does not automatically mean that Spain has sole claim to the treasure. Odyssey has argued in court that the Mercedes was carrying the treasure under contract with the merchants who owned it, and as such was acting as a merchant ship and not a warship.

“The Mercedes, if it was the Mercedes, was carrying a merchant cargo,” Stemm said. “While governments can take a sovereign immune warship and say that nobody can salvage it, they can’t say that you can’t salvage goods on behalf of merchants. In fact, we have the descendants of a lot of the merchants that had goods aboard the Mercedes that have come into court and said, ‘We think Odyssey should salvage these goods for us.’ ”

“And remember, there is not even a shipwreck there,” Stemm added. “This is like several football fields of just coins, scattered out over the bottom.”

Stemm says that the original expedition was to an area where his company believed a number of ships had sunk over the years. He said Odyssey notified the Spanish government of its intentions to search the area.

“When we went out to look in this general area, we thought there might be some Spanish shipwrecks,” he told Curry. “We actually invited the Spanish government to send archaeologists along. They just never got back to us.”

Goold has told other news outlets that Spain did respond to the invitation, telling Stemm, “Sunken ships are cultural heritage. Spain does not do commercial deals. It's national patrimony.”

Looting Underwater Sites

Three British divers have plead guilty to looting treasures from a wreck off the coast of Spain:

Peter Devlin, Malcolm Cubin and Steve Russ, all commercial salvagers from Cornwall, were arrested in June 2002 on suspicion of stealing gold and diamonds from a sunken ship off the coast of Galicia, in northwestern Spain.

The three faced prison sentences of up to six years each and heavy fines for theft and destruction of Spain's cultural heritage. But at a court in Santiago de Compostella yesterday, they pleaded guilty in return for suspended sentences and a fine of €1,000 plus €2,500 costs each.

"We are now convicted criminals in Spain but relieved that after seven years the ordeal is finally over and we won't have to go to prison," Mr Cubin (38) a father of four from Truro, said. "We're disappointed because it's not what we wanted at all and still maintain we did nothing wrong, but there was nothing else we could do."

Fake and Stolen Dalis Seized

From the BBC:

Spanish police say they have confiscated dozens of suspected fake artworks by Salvador Dali that were to be sold in the town of Estepona.  More than 80 pieces were seized, 12 of which might be genuine, but are on Interpol records as having been stolen in Belgium, France and the US.  A fake 10ft (3m) Dali sculpture of an elephant was priced at $1.5m (£1.1m).

Police have arrested a Frenchman who transported the pieces from France for the sale. He was not identified.

The art includes sculptures, lithographs, engravings, cutlery and textile pieces.

Police also uncovered "20 certificates of authenticity" for sculptures attributed to the Spanish artist.  Police said their suspicions were raised because the Frenchman had not sought special security arrangements for the show.  Dali died in 1989, leaving a multi-million dollar estate, the exact value of which is difficult to calculate partly because of the widespread existence of forgeries.

The works were seized from the town of Estepona, a resort town.  Reminding us again, that when you're on vacation, take extra care when purchasing art. Of the 81 seized works, 12 were thought to have been genuine.  The difficulty, it seems, is with the huge number of Dali works, and purported works.  From the Times: 

Dalí, who died 20 years ago tomorrow at the age of 84, was said to have flooded the art market with thousands of fakes. He is thought to have signed as many as 35,000 blank sheets of paper to which lithographs could later be applied at any time. Some auction houses will not touch his work

Alderman on the Black Swan Litigation

Kimberley Alderman, over at the Cultural Property & Archaeology Law Blog updates the ongoing dispute between Odyssey Marine Exploration and Spain, with a helpful copy of Odyssey's response, without exhibits:

 

Spain asks to dismiss based on lack of subject matter jurisdiction in that they are a sovereign entity.  They argue that the coins were theirs, so the coins are sovereign immune under the Foreign Sovereign Immunity Act.  This is usually used when a shipwreck is a military ship, because until a State has disclaimed their property, they still own it.  So Spain asserts that Odyssey got the coins from the shipwreck is of Nuestra Senora de las Mercedes, that its a sovereign ship, and that the U.S. District Court court doesn’t have jurisdiction over them or their coins (e.g., Odyssey needs to get their mitts off of the treasure.)

Enter Odyssey, stage right, who has some pretty good attorneys by the way. They argue, (1) that there is no ship, and no proof that the Mercedes is where the coins originated. There were just a bunch of coins scattered about on the ocean floor. (In another part of the motion, Odyssey points out the coins were salvaged in an archaeologically-sound manner).  Therefore, sovereign immunity doesn’t apply.

They back it up with (2) even if the coins came from the Mercedes, they aren’t sovereign immune for a couple reasons.  First, the Mercedes is not sovereign immune because it was not exclusively noncommercial at the time of its sinking (was carrying commercial cargo and passengers).  Second, the specific journey the Mercedes was on at the time of its sinking was primarily commercial.  Finally, most of the Mercedes cargo was commercially owned and therefore wouldn’t be sovereign immune.

The parties are still at the Summary Judgment stage, in which Spain is essentially arguing the dispute cannot continue because Odyssey cannot win, even if the judge were to adopt Odyssey's view of the evidence.  The dispute may hinge on Spain's ownership of a long-sunk vessel, and what activities it was engaged in hundreds of years ago when she went under.  One policy to note, Odyssey has a vested interest in not undertaking a serious archaeological exploration of the vessel, as the more information they have destroyed, the harder it will be for Spain to establish its claim.  Regardless of who wins the dispute, that is not a helpful policy.  

Profile of an Antiquities Dealer

The Associated Press has an extended profile of Leonardo Patterson. An antiquities dealer from Costa Rica who is currently being investigated by German and Spanish authorities. In April, police in Munich seized more than 1,000 objects from his warehouse.

Pictured here is Peruvian archaeologist Walter Alva. He received a catalog of Patterson's antiquities in 1997:

[H]e saw more than 250 ancient Peruvian pieces, mostly from tombs raided in the late 1980s. There were necklaces made of gold and lapis lazuli from la Mina in northern Peru. There were copper masks and a necklace made of 30 gold spiral-shaped ornaments from Sipan, the center of the Mochica culture dating to 200 A.D.

Alva was not surprised that many of the pieces had ended up in private European collections.

"There is a very active market in the United States and Europe," said Alva. "We have to eliminate this idea that those who collect archaeological artifacts are cultivated people."

He asked Interpol in Lima to investigate. Interpol in turn asked a Lima court for an international arrest warrant for Patterson in 2004. Four years later, there has been no ruling, according to Interpol officials in Lima.

Patterson is accused of selling fakes and forgeries as well as looted antiquities. It seems Patterson may have been connected in some way to the looted Peruvian gold headdress which was recovered from Patterson's lawyer's office in 2006.

Spain Claims "Black Swan" is the Nuestra Senora de las Mercedes

Yesterday, Spain filed papers before US Magistrate Judge Mark Pizzo in the Federal District Court for the Central District of Florida. They argued the evidence provided to them by Odyssey Marine has been evaluated by Spanish archaeologists and that "with complete certainty" these objects came from the colonial galleon Nuestra Señora de las Mercedes, sunk by the British in 1804.

In March, judge Pizzo ordered Odyssey to share information with the Spanish, Odyssey Marine Exploration Inc. v. The Unidentified Shipwrecked Vessel, 2008 WL 691686 M.D.Fla.,2008. (March 12, 2008). Spain's announcement yesterday appears to be is response and evaluation fo this evidence provided by Odyssey. Despite attempting to with hold the location of the wreck, and even code-naming the find the Black Swan, Spain has seemingly established the identity of the vessel. James Goold, counsel for Spain argued "The mystery is over ... [the treasure] belongs to the Spanish Armada." Certainly, Spain is staking its claim to the moral high ground, as it apparently argued yesterday that it never authorized Odyssey to molest the "gravesite of hundreds of Spanish sailors and their family members."

Yesterday's filings don't yet appear to be available on Westlaw, but as I understand, Spain is arguing the Kingdom of Spain has not abandoned ownership rights in the vessel or the cargo. Further, Spain argues it has not permitted the salvage of its vessels without authorization. Spain is asserting its rights under sovereign immunity. As I've stated before, under the Foreign Sovereign Immunities Act, of 1976, Spain may be able to claim the coins, so long as the vessel was not engaged in commercial operations. This may lead to the strange situation where a determinative issue may involve Spain and Odyssey Marine arguing over the primary motive of a vessel and her crew which may have sank over two-hundred years ago.

None of this controversy seems to be helping Odyssey's stock price, which is down 22% this year. The finds may be worth as much as $500 million US, but its beginning to look increasingly likely that Spain is gaining the upper hand, and Odyssey may be in jeopardy of earning any salvage award.

Related Posts.

"...no more archeology than...collecting Indian arrowheads"

So says George Bass, a nautical archaeologist at Texas A&M University in an excellent article by John Colapinto in the most recent edition of the New Yorker on Odyssey Marine, titled "Secrets of the Deep".

In May of 2007 the company announced it had discovered a large colonial-era wreck which may perhaps be the largest underwater treasure recovery in history. Before the announcement the company "had transferred the gold to fife hundred and fifty-one plastic buckets, loaded them onto a chartered jet, and flown them to the United States from Gibraltar." The company has termed the wreck a code name, the Black Swan, and refused to divulge its location. At present, Spain has brought suit in Federal District Court in Tampa, Florida seeking recovery of the coins under the doctrine of sovereign immunity. Presiding over the case is U.S. District Court Judge Mark Pizzo, who incidentally presided over a Securities and Exchange Commission trial of many of the managers of a company called Seahawk for insider trading. The defendants there were acquitted, but went on to found Odyssey Marine.

Under the Foreign Sovereign Immunities Act, of 1976, Spain may be able to claim the coins, so long as the vessel was not engaged in commercial operations. This may lead to the strange issue of Spain and Odyssey Marine arguing over the primary motive of a vessel and her crew which may have sank over two-hundred years ago.

There have been no shortage of critics of Odyssey Marine and its endeavors. UNESCO Director General Koichiro Matsuura strongly condemned the efforts in an editorial in the Miami Herald, and Peru has even stated its ethical claim for the gold.

Greg Stemm is the current CEO of Odyssey Marine, who was acquitted in the earlier SEC prosecution, argues in the New Yorker that "by publicizing the shipwrecks it finds--on TV specials, in books, and on its Web site--the company does more to educate people about our seafaring past than academics do." As Stemm says "If I were an archeologist today, I'd be saying, 'Why aren't we out there working with [them]?"

Colapinto has helpfully solicited the opinions of some archaeologists, and they are not positive. George Bass of Texas A&M says "Finding, raising, and conserving artifacts is no more archeology than my aunt's careful collecting of Indian arrowheads on her South Carolina farm." I'm hardly an expert on marine archaeology, but there seems to be a very big gap between Odyssey's activities and Bass' efforts in excavating an 11th-century wreck off Turkey. He and the team of researchers spent three decades "piec[ing] together nearly a million fragments of glass retrieved from the wreck. These yielded beakers, cups, bowls, and bottles, and, for the first time, information about medieval Islamic glassware." Careful excavation of underwater sites can reveal important historical information. The Titanic may not have been sunk by an iceberg, but by cheap rivets (it was this tragic disaster that spawned perhaps the worst movie of the last 20 years).

I find myself becoming more concerned with Odyssey Marine and its methods the more I learn about them. Their purpose in the Black Swan case has been all about the coins, and there are even indications they have manipulated news reports and discoveries to time with selling shares in the company. In this case, the more they know about the wreck, the harder it may be to keep the coins. They do not seem to interested in serious archaeological study, but rather want a kind of superficial appearance of archaeological study to sell more of the objects they find. Odyssey, nor the predecessor company Seahawk has never published any of its research in a peer-reviewed journal. I think there is a lot to criticize about Odyssey's approach. However I do not think the UK and Spain are entirely blameless either. They have hired the company to search their waters, and it strikes me as a bit odd that Spain has reacted in this way when they had hired Odyssey Marine to search Spanish waters.

The presumption has long been that the salvor will be entitled to a portion of what they find on the ocean because they have risked their equipment, or their lives in some cases to salvage underwater sites. That general position will not change any time soon. The 2001 UNESCO Underwater Heritage Convention takes an aggressive line, and prohibits all commercial exploitation of underwater cultural heritage. This is a step many nations will refuse to take. Only 15 nations have signed on, and the convention requires 20 before it enters into force. In this case, by arguing too vehemently, I think UNESCO has left itself with no say on the disposition of underwater sites found in international waters.

Peru Wants a Piece of the Black Swan

Sam Jones of the Guardian had an interesting article earlier this week updating the dispute between Spain and Odyssey Marine over the enormous shipwreck known as the Black Swan. Odyssey Marine recovered a massive amount of gold off the ocean floor, which may in fact be the wreck of the Nuestra Senora de las Mercedes. The dispute is currently pending in US Federal Court in Florida; the admiralty law of salvage will most likely dictate that Odyssey Marine will at the very least get to keep a substantial portion of their haul provided the wreck was found in international waters.

Now it seems Peru has made claims:

But Madrid and Odyssey are now facing growing calls from Peru for some, or all, of the Mercedes' cargo to be returned to the South American country.
Peruvian campaigners say that because the gold and silver coins were probably minted from metal taken without permission by the Spaniards, they belong to the modern-day country, not its former colonial master.
Last year, Peru's production minister, Rafael Rey, said it was only "logical" that his country would seek the treasure's return.
Blanca Alva Guerrero, director of the defence of cultural patrimony at Peru's National Institute of Culture, said: "If we can establish that some or all of the recovered artefacts came from Peru, we are ready to reclaim them as material remnants of our past."
She added that Peru had a legal right to recover any items deemed part of its "cultural heritage".
Mariana Mould de Pease, a Peruvian historian who has successfully campaigned to oblige Yale University to return hundreds of artefacts taken from the Inca citadel of Machu Picchu, said that although Spain had "acted duplicitously, and - where necessary - brutally" during the colonial period, she hoped a deal could be reached. "Given the historical ties between the two countries, I think Peru should join Spain in taking part in the scientific recovery of the ship's contents."
She said that Italy's recent success in securing the return of Roman items from the Metropolitan Museum of Art and the Getty Museum in the US had "already influenced countries such as Peru when it comes to taking legal action founded on cultural restitution".
Spain, however, has so far dismissed the Peruvian claim, saying that the Mercedes was sailing under a Spanish flag and pointing out that Peru did not exist as a country in 1804.

This appears to be nothing of substance backing this up. I do not see any way in which Peru could intervene in the dispute between Spain and Odyssey Marine. Perhaps others are aware of this kind of thing working in other contexts, but as vile as the conquistadors may have been, they weren't dealing with a legal entity or nation as they understood it. Peru did not exist when this gold was taken.
Also, many will of course note that the agreement between Yale and Peru is hardly a done deal, despite the fact its probably about as good a deal as Peru could get under the circumstances.

I'm also surprised at how the Italian repatriation successes of recent years are continuing to appear in circumstances which are wholly unrelated. The Odyssey project, as flawed as some may believe it was, appears completely legal, and is a far cry from the looting which the Italian repatriations were responding too.

Recovering a priceless object or punishing the thief?

That's a fundamental question which plagues criminal penalties for the theft of cultural property, and it often plays out in the decision-making of individual law enforcement officers, judges and prosecutors. The latest example is the laudable recovery and return today of two500-year-old maps stolen from Spain's National library earlier this year; one of which is this map which shows the recently discovered new world. Paul Hamilos has an overview from Madrid in today's Guardian. I commented on the recovery of one of these maps back in October, after it was sold on eBay. The FBI press release from Nov. 8 is here.

The thief, Cesar Gomez Rivero is a 60-yar-old Spanish citizen of Uruguayen descent who is a resident of Argentina. He sent his lawyer to negotiate an immunity deal with a judge in Buenos Aires in exchange for handing over 8 of the 19 stolen maps. The judge rejected the deal and was able to keep the maps. Apparently he used a Stanley knife to cut pages from the collections at the national library. Eleven maps have been recovered in total, in the UK, Australia, Argentina, and the US.

Map Recovered in Sydney

Another example of the international nature of the cultural property trade: the Sydney Morning Herald is reporting in tomorrow's edition that this 15th century map by Ptolemy has been recovered after its theft in Spain, shipment to the US, sale on ebay, and eventual purchase and shipment to Australia. I'd imagine that seller will be receiving negative feedback on this transaction. There's no word yet on whether criminal charges will be filed, or who the seller may have been.

The map, known as the Ulm Ptolemy World Map, illustrates what was then known about the world and is described as "perhaps the most famous and highly sought after of 15th-century world maps, and certainly the most decorative".
Valued at $160,000 [australian], the Ptolemy map was stolen from Spain's National Library and made its way to the US, where it was bought on the internet by Simon Dewez, owner of the Gowrie Galleries in Bondi Junction."I had absolutely no idea it was stolen," Mr Dewez said yesterday. "I thought it was a fantastic buy, a rare opportunity." The map has been recovered and is with the Australian Federal Police, who sent photographs to the National Library in Madrid. "They've confirmed it's their missing map," a spokesman said. "The gallery surrendered it willingly." Spain will apply to Australia to have the map returned. A legal dispute over ownership is not expected. Mr Dewez declined to name the dealer from whom he bought the map but described him as a reputable dealer who had refunded him. Mr Dewez, whose gallery has a 120-page catalogue offering rare maps for sale, bought the map on behalf of a client as a superannuation investment.

The stolen map was one of 12 maps and other documents cut from a 16th-century edition of Ptolemy's Geographia, based on the original work by Claudius Ptolemy in the second century. Best known as an astronomer, Ptolemy (AD 85-165) compiled Geographia from existing records and by detailing the geographic co-ordinates of 8000 locations. He was the first to visualise a great southern land mass uniting Africa with Asia and enclosing the modern Indian Ocean.

Spain Seizes the Ocean Explorer

An intrepid commenter has alerted me that Spain has in fact seized the Ocean Explorer, the vessel belonging to Odyssey Marine which had been anchored in the British colony of Gibraltar. It's the latest in an ongoing dispute between the salvage company and Spain over perhaps the largest single underwater recovery in history. The BBC has coverage here.

On Tuesday, patrol boats from Spain's maritime police intercepted the 76m Odyssey Explorer, owned by underwater salvage firm Odyssey Marine International, three miles off the coast of Gibraltar. It was ordered to the Spanish port of Algeciras for inspection. Spain's Guardia Civil has been keeping a close eye on the company's vessel since a Spanish judge ordered that it be detained and searched if it left port in Gibraltar. The company says its recovery vessel has been effectively blockaded since the ruling in June. Spain believes it could provide clues to the identity and location of the wreck that yielded half-a-million colonial era silver and gold coins. It suspects that a Spanish galleon is being secretly plundered - or that the wreck lies in Spanish waters.

This is the predictable result when there is no workable international legal framework governing underwater archaeological sites, combined with the failure of states to delimit their maritime boundaries. As I've stated before, whether the waters near Gibraltar are international is still very much an open question.

Perhaps most importantly, Odyssey may have discovered the largest ever quantity of shipwrecked "treasure", but it seems Spain is going to do everything in their power to prevent the company from profiting off the recovery; in the hopes perhaps of discouraging future salvage operations. Is this merely profit-seeking, or is there archaeological research being conducted? The fact that the wreck has been code-named the "black swan" and has not been revealed to Spain or other nations in the Mediterranean indicates the former.

Treasure, Salvage and Archaeology

John Ward Anderson has an informative update on the ongoing dispute between Spain and Odyssey Marine in today's Washington Post.

I've written on this before, but here's a short recap. In May it was announced that $500 million worth of silver and gold was discovered from a wreck Odyssey has code named the Black Swan. The discovery is probably the most valuable underwater find yet discovered. Speculation abounds that the wreck could be the Merchant Royal which sank off Cornwall, or the Nuestra Senora de las Mercedes, a Spanish frigate sunk by the British Navy in 1804 known to be carrying a great deal of silver.

Spain suspected Odyssey Marine had discovered one of her ships, and brought a legal action against the company in Federal District Court in Florida. Later in July, one of Odyssey's vessels, the Ocean Alert, was forced to remain in port in the Spanish port of Algeciras before releasing it. Another vessel, the Odyssey Explorer, has been detained in Gibraltar because Spanish authorities have warrants to detain it if it leaves Britain's waters. This is a difficult issue as the territorial waters in the area are open to a great deal of dispute.

In the Washington Post, we get some of the comments of the interested parties. Here's what Greg Stemm, co-founder of Odyssey Marine had to say:

Shipwrecks are a resource like any other resource, and every other resource -- scientific, cultural or otherwise, whether it's coins, whether it's stamps, whether it's antiques -- it's all owned, bought, sold and traded all the time.

That's one perspective certainly, but many archaeologists are very critical of commercial exploitation of historic wrecks. James Goold, Spain's counsel gives his client's view:

Everything points to Odyssey having known exactly what ship they were looking for and having then decided to claim it was unidentified,... The law is quite clear that an owner of a ship remains the owner after it sinks, and a sovereign nation has a right to protect its cultural heritage, ... Spain has cultural heritage laws, and Spain has a program of underwater archaeology, and there are projects Spain undertakes by itself or with archaeological institutes for the public benefit, but not so someone can scoop up gold coins and sell them...

At present, the situation is untenable, as advances in technology make it easier to discover these wrecks. Also, the state of admiralty law is essentially just finders keepers. That does not seem likely to change unless the archaeology and heritage lobby can effectively negotiate with the interest of commercial exploitation. Perhaps some archaeological research is better than nothing?

The dispute will be interesting to watch unfold. If the vessel is Spanish, Spain may have rights to it if it is not deemed abandoned. However Odyssey will likely be entitled to some kind of salvage award, as admiralty rewards finders. Admiralty law assumes that a salvor should be rewarded for risking her life and property to rescue the property of another. From what I remember of my admiralty course in law school, it is likely that because this sunken treasure has been lost for a great deal of time, Odyssey Marine will likely get the majority of the value of the property. The ultimate determination is up to the judge to determine though, and will sometimes depend on how dangerous or how much skill was needed to find the wreck.

The 2001 UNESCO Convention on Underwater Cultural Heritage (UCH) precludes commercial exploitation of wrecks altogether. In an ideal world that rule might work. But archaeological resources--at sea or on land-- are seldom left alone, and few nations have signed on to the UCH convention. I think archaeologists are understandably frustrated, because they know how much such a wreck could tell us, and we don't really have any way of knowing what Odyssey is doing with the wreck.

A convention or a policy which only incorporates the view of the archaeologists will always fail, and that is the biggest problem with the UCH Convention. Major market nations, and historic superpowers with historic wrecks (like nuclear subs, warships, etc.) will not sign on. Ideally a pragmatic solution must be reached, similar to the Portable Antiquities Scheme in England & Wales or the Scottish Treasure Trove system whereby admiralty law should incorporate archaeological value into salvage disputes. At present the only value is that of the objects rescued. But the archaeological record has value as well, and perhaps that should be quantified as well. Salvors could be punished for destroying or failing to document the record. That will take legislation or treaties. Judges cannot inject such a requirement. The first step will be to build a consensus for action. In the interim, the simple finders keepers rule will prevail.

Spain and Odyssey Marine

The Spanish civil guard has seized a vessel belonging to Odyssey Marine soon after it left Gibraltar. As I've stated in earlier posts, Odyssey Marine found a 17th Century wreck somewhere in the Atlantic, which it says may be worth $500 million. The gold has already been shipped back to the United States. Both Odyssey Marine and authorities from Gibraltar say the ship was illegally seized because it was in international waters according to the BBC. However, as I've said before it isn't at all clear where Spanish waters end and International waters begin, and the interested parties have of course not clearly laid out their maritime boundaries. I don't consider myself an expert on admiralty law, so I'm not really sure who has the stronger claim to the treasure which was shipped back to the United States. I do know that the Federal case pending in Florida will be interesting to watch unfold. From the cultural policy perspective though, I haven't seen any evidence that Odyssey is conducting serious archaeological study, though perhaps they are.

(Hat tip to David Nishimura at Cronaca)

Showdown on the Strait of Gibraltar

The dispute between Spain and Odyssey Marine has taken an interesting turn. A Spanish court has ordered the interception of two of Odyssey's vessels if they decide to leave Gibraltar. The two ships are currently moored in Gibraltar. The Spanish Culture Minister Carmen Calvo said "International laws are behind us and if anything outside the law occurred it will have an answer, and what is ours will return to Spain."

Odyssey has been secretive about where exactly they discovered the record shipwreck. Some have speculated that the wreck was in international waters off the coast of England. However Spain apparently feels otherwise, especially as Odyssey vessels were doing marine research in Spanish waters recently.

Over at Opinio Juris, Julian Ku has some interesting things to say, as does Anton Zeilinger in the comments. It seems the international boundaries of the territorial waters are very unclear. The maritime boundary between Spain and Gibraltar and between Spain and Morocco is unresolved. Even if Odyssey wanted to send its ships through the Suez canal, its not clear when they would be passing through Spanish waters.

The upshot is, states need to resolve their maritime boundaries. For a very interesting example of that problem, in the Adriatic, you can see an article my colleague Jernej Letnar Cernic has co-authored with Matej Avbelj, The Conundrum of the Piran Bay: Slovenia V. Croatia - The Case of Maritime Delimitation, forthcoming in the Journal of International Law & Policy, available on SSRN.

Spain is taking a very aggressive line with Odyssey marine. Perhaps they are attempting to get Odyssey to reveal the location of the wreck. Spain wants to be real sure the wreck was in international waters, or it may want to send its own salvage and archaeological teams to study the wreck. The dispute will certainly continue, and the forthcoming federal admiralty case in Florida is going to be very interesting.

Massive Antiquities Arrests in Spain

Over the weekend in Spain, the civil guard in Cadiz announced arrests of three individuals alleged to have patrolled the shallow waters off Cadiz. They used an underwater robot to salvage objects from ancient shipwrecks, yielding treasures as varied as Roman anchors, Phoenician pottery, and bullets from the Battle of Trafalgar. The Guardian report has labeled the individuals "pirates". Though their behavior violates Spanish law, I'm not sure we can call them pirates in the conventional sense. A number of companies legally salvage wrecks in other waters. Generally, English and American admiralty law rewards salvors. When property is lost at sea, the rescuer can claim a salvage award on the property. That doesn't appear to be the case for the defendants in Cadiz though. I would guess that the defendants were patrolling within Spain's territorial waters. An important issue at the criminal trial will likely be how the prosecutors can prove the objects were taken within Spain's waters. Of course, their claim seems to be helped by the fact that the individuals were hiding the objects in hidden compartments in their oxygen tanks. The criminal law probably triggers as soon as the objects were brought ashore

Without knowing too much about Spanish Admiralty law, Spain has outlawed salvage in this area, and with good reason. The port of Cadiz has been a bustling port for millennium, and has "the country's largest shipwreck cemetery, holding an estimated €1.5bn in sunken gold, silver and pearls, according to Juan Manuel Gracia, president of the Association for the Recovery of Spanish Galleons." No wonder then that Spain is attempting to restrict salvage in the area. As technology is increasingly opening the depths to exploitation, these disputes are likely to increase. Spain and England are currently disputing the wreck of the Sussex, a British warship which sank with $4 billion worth of gold in 1694.

It seems that the underwater treasure hunters had ties to others as well, because there are a number of reports today that 52 individuals have been arrested throughout Andalusia. The arrests seem to be linked to the three in Cadiz. The Guardian reports that "A team of 200 officers searched 68 flats to confiscate the pieces, many of which were bound for foreign collectors. The ring sent coins and small items through the mail. Police found larger pieces destined for Faro, Portugal, where they were to be flown to Belgium." Reuters has a wire report as well. The reports boast that over 300,000 objects were recovered. That's a staggering sum, and one wonders how many of the recoveries were of high quality. However, this image of recovered mosaics indicates that the authorities didn't just recover anchors and bullets.