Mexico Denies Odyssey’s Request

Mexico has denied a request by Odyssey Marine to explore a shipwreck located in the Gulf of Mexico(remember the UK granted similar permission recently to exploit the HMS Victory).  From the AP:

The ship in question, the galleon Our Lady of Juncal, was part of a fleet hit by a powerful storm in 1631 in “one of the greatest tragedies that has ever occurred in Mexican waters,” according to Mexico’s National Institute of Anthropology and History.


The proposal by Odyssey Marine Exploration Inc. of Tampa, Florida, “is not intended to conduct research and does not have the approval of archaeologists or an academic institution of recognized prestige,” the Institute said. It added that “treasure hunters have always had their eyes on” the wreck site.


Odyssey Marine chairman Greg Stemm said in a statement that “the proposal presented to Mexico for archaeological services is in compliance with the UNESCO Convention and would keep all cultural artifacts together in a collection.”


The United Nations Educational, Scientific and Cultural Organization says on its Web site that the convention aims to “preserve in situ all remains of human existence submerged for at least one hundred years.”

Questions or Comments? Email me at derek.fincham@gmail.com

UNESCO Wants HMS Victory Preserved

Yesterday UNESCO released a statement concerning the announced discovery of the wreck of the HMS Victory by Odyssey Marine:

“I am delighted that such an exceptional example of underwater heritage has been located. The cultural and scientific value of this artefact is considerable,” declared Koïchiro Matsuura, Director-General of UNESCO. “In the spirit of the Convention adopted by UNESCO in 2001, I trust that all parties concerned will take the necessary measures to ensure this important vestige of British naval history is safeguarded and given appropriate attention, not used for commercial gain.”

The statement stands in stark contrast to this week’s earlier interview by the company’s own Greg Stemm.  UNESCO and the relevant Underwater Heritage Convention both strongly disapprove of the use of underwater sites for commercial gain.  Few of the World’s major nations have signed on to this proposition.  The UK Government would seem to believe that scientific study can be accomplished with commercial exploitation, or at least that the commercial value may outweigh a more thorough study. 

Questions or Comments? Email me at derek.fincham@gmail.com

"You can be a good businessman and a good scientist "

So says Odyssey Marine’s Gregg Stemm in an interview with Spiegel Online International

Here is an excerpt:

SPIEGEL ONLINE: Would you call yourself a treasure hunter?
Stemm: No, that sounds as if we just picked up treasures from the ocean and did not care about anything else. That is not what we do.
SPIEGEL ONLINE: You alway stress the scientific part of what you do rather than the quest for profit. Yet you are CEO of a publicly traded company and have to think about your investors.
Stemm: It is a fusion of business and science. Some people might be cynical about it, but I see no difference to medicine, chemistry and other sciences. They all earn money, yet nobody would doubt that they do valuable scientific work. You can be a good businessman and a good scientist at the same time.
SPIEGEL ONLINE: Still, marine archaeologists regard your trade with suspicion. They say commercial salvage companies destroy wrecks and disturb the dead.
Stemm: They do not have any evidence. During our work in the English Channel, we investigated 25 shipwreck sites. We took only very few artifacts and delivered them to the British government. We do not talk about marine archaeology, we practice it. Excavating a wreck like the HMS Victory costs $30 million. No government is willing to spend that kind of money — even less so in a recession.

Questions or Comments? Email me at derek.fincham@gmail.com

HMS Victory Found

Odyssey Marine has announced today in a news conference in London the apparent discovery of the HMS Victory, which sank in the English Channel in 1744.  The wreck was discovered in May 2008.  The company has recovered two of the vessel’s one-hundred brass cannons, pictured here. The wreck is rumored to contain more than a billion dollars in gold

 Note that Odyssey won’t have the rights to this gold, unlike the “Black Swan” wreck, this vessel was clearly a British navy man-of-war, and as such any salvage will be property of the crown.  Odyssey is now negotiating with the UK Government.  A far different relationships than with the Spanish, who have been strongly critical of the company, including bringing suit in federal court in Tampa Florida over the “Black Swan“. 

From the Guardian:

The Ministry of Defence has given the company permission to go back down to the wreck to try to find the treasure.


The British Government will legally own any gold that is recovered, but Greg Stemm, chief executive officer of Odyssey Marine Exploration, said he was in negotiations and would expect to be rewarded for the find.


Mr Stemm said: “The money is not as important as the cultural and historical significance of the discovery. It is a monumental event, not only for Odyssey but for the world.


“It is probably the most significant shipwreck find to date. HMS Victory was the mightiest vessel of the 18th century and the eclectic mix of guns we found on the site will prove essential in further refining our understanding of naval weaponry used during the era.”

Stemm certainly appears to be playing up the heritage and cultural significance angle.  Again the question worth asking is, will Odyssey be undertaking serious archaeological study?  Will the Government insist upon such an examination?  It’s worth noting as well that Odyssey is traded on Nasdaq.  Might its stock increase today?  Should we be treating the discovery of underwater heritage in this way?

Loss of HMS ‘Victory’, 4 October 1744, by Peter Monamy. 

Questions or Comments? Email me at derek.fincham@gmail.com

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.  

Questions or Comments? Email me at derek.fincham@gmail.com

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.

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Questions or Comments? Email me at derek.fincham@gmail.com

"…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.

Questions or Comments? Email me at derek.fincham@gmail.com