This case Study is by Master Class 1 Students at W.A. Maritime Training Centre

What is the situation?

In May 2007, Odyssey Marine announced the discovery of the "Black Swan," a Colonial period site located in the Atlantic Ocean. Yielding over 500,000 silver coins weighing more than 17 tons, hundreds of gold coins, worked gold, and other artifacts, believed to constitute the largest collection of coins ever excavated from a deep-ocean site.

Following Odyssey’s announcement of the "Black Swan" discovery, the Kingdom of Spain filed claims contending the sunken treasure was taken from a Spanish sovereign ship “Nuestra Señora de las Mercedes” in Spanish waters, and is therefore the property of Spain.

Where do they stand?

•    The true identity of the Wreck has not yet been established

Odyssey has stated clearly that the recovery was conducted in conformity with Salvage Law and the Law of the Sea Convention, beyond the territorial waters or contiguous zone of any country.

Spain has a standing policy of non-abandonment for all of its shipwrecked vessels around the world. Spain has stated that:

•    In accordance with Spanish and international law, Spain has not abandoned or otherwise relinquished its ownership or other interests with respect to such vessels and/or its contents, except by specific action pertaining to particular vessels or property taken by Royal Decree or Act of Parliament in accordance with Spanish law

•    The Embassy of Spain accordingly wishes to give notice that salvage or other disturbance of sunken vessels or their contents in which Spain has such interests is not authorized and may not be conducted without express consent by an authorized representative of the Kingdom of Spain.

The Spanish Civil Guard stated it was investigating “An offence against Spanish historic heritage” & Spanish Civil Guardia seized two vessels of Odyssey Marine at separate times to be searched.

•    The “Odyssey Alert” on July 12, 2007, of Europa Point, Gibraltar.

•    The “Odyssey Explorer” on October 16, 2007, as it sailed out from a Gibraltar port.

Both cases were claimed by Odyssey Marine to be in international waters and the Spanish government did not obtain permission from the Master or Flag state before boarding therefore rendering the seizures illegal.

The Spanish Government stated that it does not recognize Gibraltar waters except within the port, and that all waters up to 12Nm from its coastline are considered Spanish waters.

The real case here is the identity of the wreck and therefore who can make claim on it.

Spain’s claim is premised on the possibility that the vessel is Spanish. If the vessel is found to be a Spanish ship that was owned by the government of Spain at the time it sank, then Spain could have a claim as the successor owner of the vessel.

Odyssey says, “The site which is primarily comprised of cargo spread over a large area does not contain an actual vessel or shipwreck. There are no signs of human remains at the site; however, the site is being treated with the utmost respect.”

However Spain claimed the entire ownership of the wreck and cargo, saying that it would pay no salvage award at all for the recovery because the cargo of the Mercedes would be protected by sovereign immunity, which supersedes admiralty law.

Similar cases & situations:-

American treasure hunter Mel Fisher and a team of sub-contractors, funded by investors and others in a joint venture, searched the sea bed for the Atocha for 16 and a half years; Fisher had earlier recovered portions of the wrecked cargo of the sister ship Santa Margarita in 1980. The Atocha wreck and its mother load of silver, gold and emeralds were finally discovered on July 20, 1985. It was Mel's son, Kane, who radioed the news to Treasure Salvors headquarters on the Florida coast, from the salvage boat Dauntless. It is understood by experts that the sterncastle, the part of the ship that would hold most of the gold and rare Muzo emeralds, is still missing from the shipwreck.

The salvaged coins, both gold and silver, were minted primarily between 1598 and 1621, although numerous earlier dates were represented too, some of the dates extending well back into the 16th century. Many of the dates and types of the period had been either rare or unknown prior to the salvage of the wreck.

After the discovery, the United States government claimed title to the wreck and the State of Florida seized many of the items Fisher had retrieved from his earliest salvage expeditions. After eight years of litigation, the U.S. Supreme Court ruled in favor of Fisher on July 1, 1982.The Atocha was found on July 20, 1985. Fisher died on December 19, 1998.

How is this one different/the same?

•    It is not a battle between foreign States whose laws do not see eye to eye and the Spanish are not involved.

•    Also the wreck was found in US waters and not on the High Seas? International waters.

What did the courts decide?

On February 17, 2012, it was reported that U.S. Magistrate Judge Mark Pizzo ordered Odyssey to return the coins to Spain by February 24, 2012, where they will be dispersed to museums, not to heirs. The Supreme Court declined to stay this order.

Odyssey will abide by the decision, even though it "flies in the face of all legal precedent," said Melinda MacConnel, vice president and general counsel. MacConnel said the ruling "undermined" the jurisdiction of U.S. courts in naval affairs, and complained that Washington had influenced the case in Spain's favor. "Clearly, the political influences in this case overshadowed the law," she said.

As the case stands now, by court order, Spain will take over possession of the treasure from Odyssey on or before February 24, 2012. Odyssey still has an opportunity to petition the Supreme Court to reconsider the issues in the case. That Petition will be made on or before February 27, 2012. If the Supreme Court declines to hear it, the case will be over. If the Supreme Court agrees to hear it, its eventual ruling will be final.

What lessons can be learned?

“Whenever a wreck is discovered and recovered on the high seas, conflict may arise between the various parties who might wish to assert ownership claims. Such discoveries often prompt litigation to determine ownership rights to wrecks and their contents. Litigation is both costly and time consuming. The costs of litigation add to the already expensive costs of mounting an expedition to find and recover these wrecks.
Because of ambiguities in the law, as interpreted by U.S. federal courts, multiple parties may assert ownership claims: The first finder may assert claims against subsequent finders; the previous owner may assert a claim against the finder; and, depending upon the location and nation of origin of the wreck, national or state governments may assert ownership claims.”

No matter how much time and money has been spent salving a wreck, there is still a chance that the treasure hunters may walk away with nothing.

“MacConnel also expressed concern that the Court's decision in this case will make it more likely that future recoveries of undersea treasures that are associated with sovereign vessels will be performed solely by unscrupulous treasure hunters who will melt down and sell their finds rather than bring them into court for adjudication.”

The Law can sometimes be pushed aside by political influences

How is a similar situation avoided?

Based on this case a Washington University have written up a New Policy regime, it includes:

Policy recommendations for an amendment to the UNCLOS Treaty that addresses the three goals listed below while balancing the interests of the various parties vying for ownership rights.

This new regime should strive to:

(1) Alleviate the burdens of litigation by clarifying the issue of ownership in ancient wrecks,

(2) create incentives for the retrieval and preservation of ancient wrecks, and                      

(3) provide a mechanism for the repatriation of ancient cultural property to the rightful nations.