The Cultural Heritage and Arts Review (a publication of the American Society of International Law) has been kind enough to publish an article I wrote titled, “High Seas Shipwreck Pits Treasure Hunters Against a Sovereign Nation: The Black Swan Case.” The article covers the litigation between Odyssey Marine Exploration, Spain, and Peru, over the wreckage of the Nuestra Senora de las Mercedes, at the U.S. District Court level (the appeal is now in progress).
The article highlights the arguments of Peru to the Spanish silver, which I was surprised to find convincing since I’m a bit of a skeptic on post-colonial restitution. That part alone is worth a lookover, in my opinion.
You can check out my article by clicking here. I’ve asked ASIL to provide a link to the entire publication, and will update this post with that link if they are able to provide one. Would love to hear thoughts and/or comments.
Best,
Kimberly
Cultural Property & Archaeology Law 
Ken Fortier
June 4, 2010
Kimberly,
I enjoyed your case summary about the Mercedes cargo salvage claim. I have been working in the maritime industry for 35 years, so I have a different view on this case. What would the implications be if the Master of the Mercedes made a decision to jetison all heavy cargo in the hope that it would keep the ship afloat. Odyssey claims that the ship was not found. The practice of discarding cargo is commonplace, especially when a vessel is taking on water and is in danger of sinking. If so, wouldn’t Odyssy’s rights of salvage be valid?
Regards,
Ken Fortier
Kimberly Alderman
June 5, 2010
Ken,
Thank you for commenting. I love to hear reader’s thoughts.
Of course I am speculating, but I do not think that jetsam would have changed the lower court’s analysis and holding because both jetsam and flotsam are considered part of the wreck under all the applicable law. The court never got to the point of considering how salvage might be implicated, because it applied the Foreign Sovereign Immunities Act — basically stating that it couldn’t decide anything because a U.S. court doesn’t have jurisdiction over the nation of Spain. I think we’ll need further factual inquiry to really make that decision, so I wouldn’t be surprised to see a remand.
Best,
Kimberly
Mariano J. Aznar
June 8, 2010
Dear Ms. Alderman,
Being involved in the Mercedes Case, I have read with my utmost interest your article. Apart for a disclaimer about my awful English, let me also point out some questions I think deserve a rather different approach:
(1) Admiralty Law as/and International Law: for you, with a common law legal background, the relationship between these two branches of the law seems easy and undisputed using “as”, i.e. Admiralty Law (and Salvage Law in particular) IS a part of International Law. This point of view cannot be accepted by a non-common law person like me (and the French, the Italian, the Russians, the Latin Americans, etc.). Admiralty Law is a rooted private law set of rules that has been partially internationalized through their insertion, in particular, in the London Salvage Convention that, curiously, includes a reservation widely used for underwater cultural heritage (UCH).
(2) This also answers another dichotomy between private and public interests. Odyssey’s (and other treasure hunters companies) only seek their own, private, commercial benefit. Let me here be “politically un-correct”: they are not archaeologists. They have not published any single piece of scientific paper on a reputed scientific journal anywhere. They do not talk about history, or common heritage, or about a scientific approach to the so delicate “time capsules” submerged objects are. They continuously lie about this, and no Nat’l Geographic movie can change this. Simple ask the reputed American societies on UCH, like INA, about this and you will gather crystal answers on this…
Spain never –I repeat: never– talk during the case (as Odyssey, Peru and the private claimants did) about a “treasure”. Spain always discussed about the protection of UCH from an unauthorized looting by a private company without any archaeological standard.
(3) Some legal questions now (keeping in mind my civil law training!):
(a) Regarding the ship and the cargo, the principle in international law is the unity of both (see your own legal jurisprudence but also the Int’l Law of the Sea Tribunal decisions or the Wreck Removal Convention 2007 text). This is the principle IN International Law, and not the contrary.
Of course there were no ship in the site: she was blowed up by an terrible explosion in which perished more that 250 persons.
(b) The private persons and their alleged cargo aboard the Mercedes: during the XIX Century, Spain offered compensation because of the loss during the performance of a PUBLIC service that the Royal Spanish Navy use to do (as any navy in those years). In any case, the Spanish courts (and not an US Court) are the most suitable remedy to solve the possible (if any) claim on this.
(c) Perú: I think I don’t need to ratify here my respect and admiration by Prof. Moore. He is an specialist and a reputed international lawyer and professor. However, in this case, he is an ‘ex parte’ specialist. And not convincing, under my humble point of view.
Leaving aside the allegation of art. 149 UNCLOS and the ‘revisitation’ of what was the Spanish presence in America (which should deserve much more lines than those simplistic you quote), his historical approach to history and colonialism is not complete. Peru WAS Spain in 1804. If not, please give the exact year when History begins. Alternatively, please give me your legal advice on the returning from Italy of all items “looted” by romans from Spain…
The coins (it’s a pity: again talking about the coins and not about common heritage!) was minted in a Spanish territory (although the silver perhaps came from other territory, and not current Perú…). A territory legally owned by Spain during that period of History. And the international law rules of succession of States do not uphold the Peruvian position as Prof. Moore tries to show.
Finally, please, do not compare this with Nazi looting by Alfred Rosenberg “Einsatz” during WWII. In the later, the law on protection on cultural heritage DID exist and the nazis simply brutally violated it.
A final remark on History: what should you think if a foreign company excavated without any kind of permit and respect the site and remains of the USS Arizona? For you, the 1941 Japanese attack without previous declaration of war was one of the most heinous act against the US. ‘Our’ Mercedes is ‘your’ Arizona: a Royal Navy frigate attacked by the Brits, without previous declaration of war.
I have preferred to end with History and not with law, being sure you are also a person who prefer to talk about cultural heritage instead of “treasures”.
Yours, Mariano