Spain – Page 2 – Illicit Cultural Property

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.

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.

"…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

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.

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

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.

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

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.

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

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.

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

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.

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

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)

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

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.

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