Sunken treasure awarded to Spain

Legal News Line ^ | 9-26-11 | Michael P. Tremoglie

[Miami Vice]

A sunken treasure worth about $500 million was discovered by an American company has been awarded to Spain by a three-judge panel of the U.S. Court of Appeals for the 11th Circuit.

The treasure-laden Spanish ship was located off the coast of Gibraltar in 2007. It had been sunk during a naval battle with the British navy in 1804.

Several parties made claim to the treasure. The company that made the recovery, Odyssey Marine Exploration Inc., the governments of Spain and Peru, and 25 individuals who were descendants of the sailors on the ship.

The federal district court, which heard the original case, ruled ...

[JimRed]

What’s the opposite of “SHOOT, SHOVEL and SHUT UP”? < /sarc >

[JimRed]

Opposite not workee. Find, shovel and shut up is more practical.

[JimRed]

So if I find $20,000, I should turn it over to the police??

If it's in the local bodega's deposit bag, yes. If it's in aluminum foil tied up in a plastic bag, no.

[G-Bear]

This is actually pretty stupid.

Several years ago, Britain changed it’s laws, and started allowing anyone that found buried treasure to sell it to museums and/or the government.

The result is that people are all over the place with metal detectors, and are finding heaps of Roman and earlier artifacts.

(Previously, when someone found gold, they would melt it down or try to smuggle it our of the country.)

[x]

The federal district court, which heard the original case, ruled in favor of Spain, reasoning that a treaty between the United States and Spain guaranteed that sunken Spanish ships would remain property of Spain. The court also referenced a 2001 signing statement by President Clinton which stated, "(the United States) recognizes that title to a United States or foreign sunken State craft, wherever located, is not extinguished by passage of time, regardless of when such sunken State craft was lost at sea."

So if a non-US company had found the treasure, they could keep it?

And Clinton did "signing statements" just like Bush?

[Elle Bee]

The attorney is more commonly known as David Paul [W]Horan here down island

He is the Denny Crain of the Keys

There is an interesting twist about the backdoor deal uncovered in a WikiLeaks document dump

Sunday, September 25, 2011

Lawyer loses treasure lawsuit

Plans to take case to U.S. Supreme Court

BY ADAM LINHARDT Key West Citizen Staff

A Key West attorney who represented Mel Fisher before the nation's highest court said he's headed for the U.S. Supreme Court again to argue another shipwreck case that could be worth far more than the famed Atocha discovery.

In a case that reads more like a Hollywood script, David Paul Horan is representing several wealthy South American families who claim the 17 tons of silver coins and other treasure worth as much as $750 million, which the Tampa-based Odyssey Marine Exploration salvage company discovered off Portugal in 2007, belongs to them.

WikiLeaks even got into the act, releasing a string of emails in which the U.S. State Department said it would help the government of Spain win the case in exchange for a painting hanging in a Madrid museum that a powerful California family says belongs to them, Horan said.

A federal appellate court ruled Wednesday that the Spanish galleon Nuestra Señora de las Mercedes was a military vessel, which means the Odyssey salvors, who claimed the treasure for themselves, must turn over the fortune to Spain.

The 11th Circuit Court of Appeals decision was a "terrible loss," Horan said, comparing it to the magnitude of Mel Fisher's discovery of the Spanish galleon Nuestra Señora de Atocha off Key West.

"This is a bigger case than the Atocha, as far as money is concerned," Horan said.

'Stripped the resting place'

The Mercedes was sunk in 1804 by British warships while it was sailing back from South America with more than 250 people on board. She laid on the seafloor undisturbed until May 2007, when Odyssey salvors announced they had recovered treasure and taken it back to Tampa.

Spain took legal action, claiming the cargo belonged to the government. A federal judge sided with Spain in June 2009. Spain argued it never surrendered ownership of the vessel or its contents.

As is so often the case in treasure lawsuits, the legal tumult was just beginning, as Odyssey lawyers appealed, arguing that the Mercedes was a commercial trade vessel, not a military ship, and therefore Spain had no claim to the fortune.

Spain said U.S. courts are bound by international maritime law and the Foreign Sovereign Immunities Act, which essentially states that foreign warships on military missions are exempt from U.S. court jurisdiction. Generally, U.S. warships and those of her allies that are sunk in battle are protected from salvors, as many governments view them as sacred mass grave sites.

James Goold, a Washington, D.C., attorney who represented Spain, called the appellate ruling a "complete victory for Spain on every point we considered important."

"A U.S. treasure company, in secrecy and without authorization, stripped the resting place of a Spanish Navy frigate and more than 250 of her crew of coins to sell to collectors," Goold said Friday. "What they did is no different than if some foreign company came to the United States and tried to remove wedding rings from the remains of a ship like the USS Arizona at Pearl Harbor."

Horan and the Supremes

Horan is one of the nation's most sought-after legal experts in sea salvage law, a result largely due to his successful Supreme Court argument on behalf of Mel Fisher in the mid-1980s. He chose to represent some 24 wealthy South American families as part of a larger legal strategy.

"I took the families because I certainly understood that Spain could make an argument and then we would have to fight the entire issue of the Foreign Sovereign Immunities Act," Horan said.

"The Odyssey was going to fight that battle. My way of looking at it was this: Of all the cases I've had in the last 30 years, the vessel and the cargo have always been considered separately."

Horan's clients were one of three interests with irons in the fire surrounding the Mercedes, and he was quick to point out that technically, the appellate court ruled that the Mercedes was a military vessel. That's the important distinction.

"What the court did was rule that it is a military vessel on a military mission and that it was not in commerce, and that is totally wrong," Horan explained.

"The court didn't rule on who owns it," he added.

Under the Foreign Sovereign Immunities Act, Spain gets the treasure. For now.

Horan is preparing to argue before the U.S. Supreme Court that there is legal precedent contrary to the 11th Circuit Court of Appeals decision. He named previous rulings involving the Foreign Sovereign Immunities Act and the court's 1998 ruling in a dispute between the state of California and salvage company Deep Sea Research.

In that decision, the Supreme Court ruled that Deep Sea Research was granted the exclusive salvage rights to a 133-year-old shipwreck, despite California's assertion of ownership of the wreck.

"Right now, I'd say we've got a 50-50 chance," Horan said of his confidence going forward. "But you're talking to someone who thought he had a 75 percent chance of winning in the 11th Circuit and we found out how that went."

WikiLeaks and Nazis

Horan's case took a bizarre turn when he said he discovered that the nonprofit, whistle-blower website WikiLeaks had posted documents suggesting that the U.S. State Department had an agreement with Spain that it would help get the treasure back to Spain in exchange for a painting, Horan said.

The painting in question, Horan alleges, is the oil painting "Rue Saint-Honore, Apres Midi, Effet de Pluie," painted by the French impressionist Camille Pissarro that was seized by the Nazis during World War II. California resident Claude Cassirer claims the painting belonged to his grandmother, who had it hanging in her Berlin parlor in the 1920s, before she fled the country due to her Jewish background, according to legal documents.

The painting reportedly was seized by the Gestapo, later purchased by several collectors over the years, and now resides at a government-operated museum in Madrid.

"The family in California is extremely wealthy and big-time supporters of the Democratic Party," Horan said.

Upon learning that information, Horan filed a motion to strike a brief with the 11th Circuit court on the basis that the United States did not disclose that information as the trial progressed.

"They said, 'We do not comment on leaks,' " Horan said of the U.S. government. "That's a direct quote. That was it. That's all they said."

The 11th Circuit court never addressed Horan's motion, he said.

Whether that information will play any role in future legal proceedings remains to be seen, Horan said.

Goold expects lawyers will try to delay the 11th Circuit court's decision, but he was confident that Spain will be the final victor.

"The odds are overwhelmingly high that this decision represents the final chapter in this case," Goold said.

.

[Elle Bee]

established wreck sites with valid claims are used and salted with artifacts from other wrecks to avoid this mess and maximise the values

.

[miele man]

Well, apparently according to the 11th Circuit, it is “losers, weepers”.

[CharlesWayneCT]

Imagine you stuck your cash in the trunk of your car. Then one day, you crashed your car, and were killed. Your next of kin doesn’t know about the cash in the car, and they can’t raise him anyway, and the car is towed to a junk yard.

Then someone searching around the junk yard finds the bag, with the identifying information for your kin, printed on it.

Who gets the money?

[HereInTheHeartland]

“Who gets the money?”

Tell us more about the person who was killed and how good of a person they were?!

[Hieronymus]

So if they stole it from the Mayans (or the Aztecs, or whomever they stole it from), it’s theirs forever?

---

If the wreck were from 1574, this point would be valid, but 230 years later the metal was almost certainly mined and not stolen. Given the expenses involved in administrating colonies, the government needed something in return just to break even (or rather, not lose as much as they otherwise might).

[Polybius]

The article says the U.S. and Spain have a treaty stating Spanish ships remain Spain’s property. If so, how is this an outrageous situation? Shouldn’t the company have researched the law before spending all that money?

Likewise, U.S. ships remain the property of the United States, no matter where in the World they sank.

In fact, this long standing tradition, codified in maritime law, even extends to the fact that the United States retains sovereign rights to the wreck of the Confederate warship CSS Alabama which was sunk in French waters.

DEPARTMENT OF THE NAVY -- NAVAL HISTORY & HERITAGE COMMAND -- UNDERWATER ARCHAEOLOGY BRANCH -- In Defense of Perpetual Title to Sovereign Wrecks

The company knew the law perfectly well. This case was being discussed in Spanish naval history forums a few years ago and the company tried to hide the fact that they were salvaging a Spanish warship (Nuestra Senora de las Mercedes) by claiming that they had salvaged a wreck they code named the “Black Swan” somewhere in the Atlantic.

[colorado tanker]

Thanks for the info! Something didn’t smell right about that case . . .

[Polybius]

Since in 1804 Spain was an absolute monarchy, shouldn’t the present King of Spain—not the Spanish government—be the rightful owner, as the lineal heir to the 1804 owner?

Symbolically, the King of Spain is the owner. Just like Queen Elizabeth II personifies Great Britain, the Spanish Constitution defines the King of Spain as "the personification and embodiment of the Spanish State". Symbolically, the British Royal Navy is "Her Majesty's Navy" and the Spanish Real Armada is "the King's Navy". Thus, the Crown on the emblem of the Spanish Real Armada.

Since, by your screen name, it appears you are a Civil War buff, check out Post 52. The same maritime laws decree that the United States still has sovereign rights over the wreck of the Confederate CSS Alabama in French waters as the legitimate sovereign successor to the Confederate Government.

[colorado tanker]

I checked out the story of the Battle of Cape Santa Maria and it's very interesting.

Spain and the UK were at peace at the time, but intelligence learned of a secret treaty by which Spain paid Napoleon tribute until it declared war. Admiralty believed Spain would declare war as soon as this treasure fleet arrived.

So, a squadron was sent to intercept the four frigate fleet. The action was over quickly - an action between four Spanish and British frigates was hardly a fair fight in those days. But a lucky shot landed in the Mercedes magazine and the ship exploded.

The epilogue is interesting too. An Admiralty court denied the crews their prize money because Britain was not technically at war with Spain (wink, wink). They did later make a gratis payment, however.

And this was the last Spanish "treasure fleet" from the New World.

http://en.wikipedia.org/wiki/Action_of_5_October_1804

[Polybius]

The company knew the law perfectly well. This case was being discussed in Spanish naval history forums a few years ago and the company tried to hide the fact that they were salvaging a Spanish warship (Nuestra Senora de las Mercedes) by claiming that they had salvaged a wreck they code named the “Black Swan” somewhere in the Atlantic. .... Polybius

Thanks for the info! Something didn’t smell right about that case . . . colorado tanker

As I recall, this issue came up around 2007. I joined a Spanish naval history forum as I was doing genealogical research on some of my ancestors who were Spanish Naval officers during that era. One of the forum members was able to local the service records of one them who, it turns out, was one of the officers on the Spanish warship San Nicolas in it's combat with Horatio Nelson's HMS Captain during the Battle of Cape St. Vincent in 1797. (The “Nelson's Patent Bridge for Boarding” episode.) If your ship has to lose a battle , it might as well be to Horatio Nelson. ;-)

In the forum, I was the only member who was fully bilingual so I was able to report back on what U.S. newspapers in Florida were saying about the case. The company was claiming that the wreck was "somewhere in the Atlantic" without revealing where. The "Black Swan" code name was used to suggest that it was a British ship (if I recall correctly, they claimed permission from a British Court) but there was suspicion on the Spanish naval history forum that the "Black Swan" was, in fact, the Spanish warship Nuestra Señora de las Mercedes.

The company was extremely coy about the whole thing and every effort was made to hide the fact that the wreck was a Spanish sovereign wreck.

Yes, the company knew the law regarding sovereign wrecks and they made every effort to skirt the law.

For those who argue that Spain should not have sovereign wreck rights, remember that the same law protects U.S. warships at the bottom of, say, Iron Bottom Sound, from being salvaged by some Japanese salvage company for sale of souvenir artifacts in Japan. By maritime law, only the U.S. has the right to salvage or cede salvage rights in regards to any sunken U.S. warship, anywhere in the World.

The Ships of Iron Bottom sound

[colorado tanker]

I admit I was confused about this case and a little annoyed about the Spaniards at first but all I knew about it was US pieces that I'm sure relied on the company for their facts.

I agree with you the sovereign wreck doctrine is a good one that the country with the largest navy in the world should support.

The fact that two U.S. courts have ruled for the Spanish position convinces me the company was in the wrong here. Must make the Spaniards feel good about our justice system.

That's a great story. Someday I'm going to go back to work on my family tree. Most of my ancestors were here so long ago, I haven't gotten back to Europe yet!

[colorado tanker]

Just for grins I read the 11th Circuit opinion. The company did not disclose in its court papers the identity of the ship and only disclosed a "suspicion" it was the Mercedes after the court ordered it to disclose the vessel. And it denied throughout the case it was in fact the Mercedes despite overwhelming evidence.

Pretty disreputable behavior, if you ask me.

[Polybius]

Spain and the UK were at peace at the time, but intelligence learned of a secret treaty by which Spain paid Napoleon tribute until it declared war. .... The epilogue is interesting too. An Admiralty court denied the crews their prize money because Britain was not technically at war with Spain (wink, wink). They did later make a gratis payment, however

That French Revolutionary era was an unfortunate time for Spain, as well as the other monarchies on the European continent. At first, Spain and Britain actually forged an alliance against Revolutionary France but, with the realities of French land power being what they were, each European Continental power had to yield to French wishes and Spain became a reluctant French ally. Similarly, the British had to attack the Danish Fleet at Copenhagen to prevent it from falling into French hands.

Among the officer class at least, relations between the British and the Spaniards were extremely cordial which was not the case, with either the British or Spaniards, in regards to their relations with the French. The correspondence between the Spanish commander of Tenerife, Antonio Gutiérrez de Otero, and Horatio Nelson after Nelson's failed attack and wounding consisted of Gutierrez offering Nelson a surgeon, Nelson sending Gutierrez a gift of British beer and cheese and Gutierrez sending back a barrel of Malmsey wine as well as flowery compliments back and forth.

A couple of days after that Battle of Cape St. Vincent, that ancestor (a great uncle, actually) was released, along with the other Spanish wounded, at Lagos, Portugal. A few years later, after the French invasion of Spain, he was in rebellion against the "Intruder King", Joseph Bonaparte, and commanding a Spanish coastal fort in northern Spain, guarding a port used by his once again allies, the British, during the Peninsular War.

His brother (my 3x-great-grandfather) ended up ambushing French troops as they passed through the family estates near that port while the brother-in-law (the sister's husband), an "Afrancesado" ("Frenchified") ended up serving Joseph Napoleon as the Admiral of the now captive Spanish fleet at El Ferrol. The Spanish naval history encyclopedia, although sneeringly noting "his extremely unfortunate judgment in serving the Intruder King" does admit that the brother-in-law "did render his Fatherland one final service" by finding excuses and delays for the Spanish fleet not to sail for Brest, France thereby keeping the fleet out of French hands when the French evacuated Spain after Wellington's victories. Regardless, after the war, the brother-in-law fled with the French to exile in France and was never allowed to return to Spain although his service record has several pleading letters to the Spanish King begging for a pardon and permission to return home. I am still trying to determine if that great-aunt followed her husband to exile in France or stayed in Spain with her brothers. Interestingly, the brother-in-law's service record documents that he was the captain of a Spanish frigate during the Battle of Pensacola against the British during the American Revolution.

It was a very unfortunate time for Spain and the rest of Continental Europe.

Then again, until the Pax Americana, Europe always had very unfortunate times.

[Mad Dawgg]

Amazing being that “salvage” rights are a well established bit of maritime law. Why would Clinton do such a thing?