Footnotes

The Bost Arch in 1970

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Looting Shipwrecks, Archaeology and the Smithsonian

Changsha bowls from the excavation

“To sell ceramics from a wreck like that makes them a hell of a lot more than selling sea cucumbers,”

So argues marine archaeologist Michael Flecker discussing the looting of perhaps the most significant shipwreck found in modern times. The wreck was discovered in 1998 by local fishermen while diving for sea cucumbers and was packed with some 60,000 glazed bowls, ewers and other ceramics. They were found in the wreck of an Arab dhow on its way from China to the Persian Gulf some 1,100 years ago. The Indonesian government did little to prevent the fishermen for taking objects from the cite and moved to hire Seabed Exploratiosn, a commercial salvage company to excavate the site, with the assistance of Flecker, who has published the excavation.

Archaeologists now are criticizing the exhibition of this material at the Smithsonian, claiming the commercial salvage amounts to looting. Kimberly Faulk of the Advisory Council on Underwater Archaeology says: “They were not excavated properly. They are indeed looted artifacts that were sold for profit,” which “sends a message that treasure hunting is OK.” That seems a very impractical stance to take. No one would argue that a concerted and extensive archaeological excavation would have been the best resolution here, or even if the Indonesian government had been able or willing to police the site of the wreck. yet short of those options, a removal of the objects with archaeologists yields some information right? What should be done with the objects now according to the archaeologists? What kinds of information might a longer extended excavation have recovered? I’d be interested in comparing the scientific results of this excavation with other more rigorous studies?

I mean, what should happen, should the 60,000 objects be returned to the ocean floor? Is there really no value in these objects without the context? If the advocates are using this for a chance to raise the profile of the problem of conservation and excavation of underwater archaeological sites, that seems a worthwhile endeavor, but doing so at the expense of common sense solutions seems to diminish their cause.

  1. Elizabeth Blair, From Beneath, A Smithsonian Shipwreck Controversy : NPR, http://www.npr.org/2011/05/04/135956044/from-beneath-a-smithsonian-shipwreck-controversy (last visited May 6, 2011).
  2. Flecker, Michael. “A 9th-Century Arab or Indian Shipwreck in Indonesian Waters.” International Journal of Nautical Archaeology. Volume 29(2), 2000.
  3. Flecker, Michael. “A 9th-Century Arab or Indian Shipwreck in Indonesian Waters: Addendum.” International Journal of Nautical Archaeology, Volume 37(2), 2008.
Questions or Comments? Email me at derek.fincham@gmail.com

Embassy Cables Discuss Odyssey Marine, and a Nazi era Dispute

So the World is buzzing with all the revelations, mundane and otherwise, offered by the release of diplomatic cables via wikileaks. This has touched all manner of foreign and diplomatic relations, even cultural property and heritage issues. The Guardian has reprinted and summarized a series of recent cables which detail meetings between US officials and Spanish officials between 2007 and 2010. The various positions and points of concern related here really don’t come as much of a surprise. What is perhaps heartening to note is the importance of these issues at the highest levels of international relations. Nations take these disputes very seriously.

It is certainly possible to over-emphasize the importance of these, but both parties certainly seem to have very different priorities. In a 2008 cable, Spanish Culture Minister Molina is concerned with the then-emerging dispute with Odyssey Marine, while the American Ambassador focuses on Spain’s dispute with Claude Cassirer. As the embassy cable summarized,

The Ambassador stressed the USG’s interest in direct discussions between the Spanish government and Claude Cassirer, the AmCit claimant of a painting by Camille Pisarro (“Rue St. Honore”) in the Thyssen Museum. The Ambassador noted also that while the Odyssey and Cassirer claim were on separate legal tracks, it was in both governments’ interest to avail themselves of whatever margin for manuever they had, consistent with their legal obligations, to resolve both matters in a way that favored the bilateral relationship. The minister listened carefully to the Ambassador’s message, but he put the accent on the separateness of the issues. Molina said that no Spanish government could return the painting (if this is what the claimant wants). To begin with, while the minister presides over the board that manages the Thyssen Museum’s collection, the minister could not oblige the board to return the painting without a (Spanish) legal judgment. The minister added that paying compensation, as the British government has reportedly done in a number of cases, also posed legal problems.

  1. Giles Tremlett, WikiLeaks cables: Art looted by Nazis, Spanish gold and an embassy offer, The Guardian, December 8, 2010, http://www.guardian.co.uk/world/2010/dec/08/wikileaks-us-spain-treasure-art (last visited Dec 9, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Odyssey/Spain Dispute Headed to 11th Circuit Appeal

The dispute between Odyssey Marine Exploration and Spain over a shipwreck which was sunk in the early 19th Century will now likely be headed for appeal.  Federal District Court Judge Steven Merryday has issued an order that has adopted the Federal Magistrate’s Report and Recommendation.  In his order Judge Merryday stated a separate opinion would “add only length and neither depth nor clarity (and certainly not finality) to this dispute.”  Though this is a win for Spain, it also means the 11th circuit will now hear an appeal.   Back in the Spring, federal Magistrate Pizzo held the Federal District Court lacked jurisdiction over the dispute and the property should be returned to Spain. 


As I wrote then, though Odyssey Marine attempted to hide the true identity of the wreck, initially code-naming the wreck the Black Swan, there was enough information to conclude the coins came from the “Nuestra Senora de las Mercedes”, a warship which was carrying treasure back from Peru when it was sunk by the British off the Spanish coast in 1804. Spain, soon declared war on Great Britain, a point which may be lost in all this talk of the treasure. This treasure was an important piece of heritage, and all the talk of Odyssey’s share prices, and the rich treasure haul shouldn’t distract us from why these objects are protected, and why Spain fought so vigorously to have them declared the owner.This latest development then is not terribly surprising.  The case involves some complex issues of international admiralty law, and half a billion dollars in gold and silver coins.  It should be a fascinating appeal, as the 11th Circuit will set a precedent governing how these salvors can explore and remove historical objects from the ocean floor.

Odyssey Marine has a press release here.

James Thorner, Odyssey Marine’s treasure tangle with Spain moves to appeals court,  St. Petersburg Times, Dec. 23, 2009.

Richard Mullins, Sunken treasure case headed to federal appeals courtTampa Tribune, Dec. 23, 2009.  

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

Odyssey Marine Salvage Award

One nation’s underwater looters are another nation’s excavators-for-hire.  Dow Jones Newswires is reporting that Odyssey Marine will receive a $160,000 award for recovering artifacts for the U.K. from the English Channel:

Odyssey Marine Exploration Inc. (OMEX) will receive a salvage award of $160,000 in a settlement with the U.K. government for artifacts recovered so far from a gunship wreck in the English Channel.The company – which uses advanced technology to comb the ocean’s depths for silver, gold and historical artifacts – also has filed a motion to vacate its admiralty arrest on the wreck in U.S. federal court. An admiralty arrest is a legal proceeding by which Odyssey seeks court recognition of its right to salvage a ship.Shares recently were up 14% at $2.33 in recent premarket trading. Still, that’s far below its all-time high of $8.32 a share in May 2007, shortly after a separate major discovery in the Atlantic Ocean, which led to a legal dispute with Spain. Shares lost two-thirds of their value in one day in June after Odyssey was recommended to return an estimated $500 million in sunken cargo. The case is still pending.The U.K. salvage award represents about 80% of the value of two cannon recovered from Admiral Balchin’s HMS Victory, a British Navy 100 gun ship lost in 1744 and submitted to the U.K. Receiver of Wreck. The company plans to contribute $75,000 of the award to support the National Museum of the Royal Navy.The company also will be involved in talks to determine approaches that should be adopted towards the wreck. Odyssey has booked losses in every year except one since it went public in 1997, but has loyal investors confident in its long-term prospects. The company generates revenue by selling artifacts and coins, from a partnership with the Discovery Channel and from leasing fees for traveling museum exhibits.  The HMS Victory is one of Odyssey’s significant finds and sank in a storm with 41 bronze cannons and other artifacts aboard.Odyssey in April had admiralty arrest on about a dozen sites.

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Spain Prevails For Now

“It is this comity of interests and mutual respect among nations . . . that warrants granting Spain’s motions to vacate the Mercedes‘s arrest and to dismiss Odyssey’s amended complaint”. So concludes US Magistrate Judge Mark Pizzo yesterday in Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel.

Odyssey Marine has lost in its bid to petition a US court for ownership of the coins, and Spain has prevailed—for now—in its suit to regain half a million gold and silver coins from Odyssey Marine Exploration which recovered them from a wreck in the Atlantic Ocean. The recovery of the coins, thought to be worth as much as $500 million was announced, though the location of the wreck, and information about the wreck was kept secret. In response Spain filed suit, and seized some of Odyssey’s other vessels. UNESCO condemned the recovery, and much has been written and discussed about this recovery, considered perhaps the richest haul ever recovered from a wreck.

In the judgment which I’ve embedded below, the District Court held it lacked jurisdiction over the dispute and the property should be returned to Spain. Though Odyssey Marine attempted to hide the true identity of the wreck, initially code-naming the wreck the Black Swan, the court held that there was enough information to conclude the coins came from the “Nuestra Senora de las Mercedes”, a warship which was carrying treasure back from Peru when it was sunk by the British off the Spanish coast in 1804. Spain, soon declared war on Great Britain, a point which may be lost in all this talk of the treasure. This treasure was an important piece of heritage, and all the talk of Odyssey’s share prices, and the rich treasure haul shouldn’t distract us from why these objects are protected, and why Spain fought so vigorously to have them declared the owner.

So these coins may be destined for Spain, finally, even though these coins were initially taken from Peru, which also asserted an interest. This has been a protracted dispute, and one that may indeed continue at the appellate level. It will be interesting as well to see how much continued involvement Peru has with the appeals process, or if Spain and Peru can come to an agreement about what can or should be done with the objects.

Spain’s Culture Minister Angeles Gonzalez-Sinde is quoted by the BBC, calling the decision “a very important precedent for all future undersea discoveries”. Gregg Stemm, CEO of Odyssey Marine said “I’m confident that ultimately the judge or the appellate court will see the legal and evidentiary flaws in Spain’s claim, and we’ll be back to argue the merits of the case.”

But for now, US Magistrate Judge Mark Pizzo has the final word, concluding his recommendation, “More than two hundred years have passed since the Mercedes exploded. Her place of rest and all those who perished with her that fateful day remained undisturbed for centuries – until recently. International law recognizes the solemnity of their memorial, and Spain’s sovereign interests in preserving it.”

For more on the company this older piece from Voice of America is pretty interesting. This suit is really about the continued viability of this kind of business, and the perils of doing so without the support of organizations like UNESCO or other nations of origin:

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

Paper On Underwater Cultural Heritage and Investment Law

Valentina Sara Vadi, a Ph.D candidate at the European University Institute has an article in the recent edition of the Vanderbilt Journal of Transnational Law, Investing in Culture:  Underwater Cultural Heritage and International Investment Law.  Here is the abstract:

Underwater cultural heritage (UCH), which includes evidence of past cultures preserved in shipwrecks, enables the relevant epistemic communities to open a window to the unknown past and enrich their understanding of history. Recent technologies have allowed the recovery of more and more shipwrecks by private actors who often retrieve materials from shipwrecks to sell them. Not all salvors conduct proper scientific inquiry, conserve artifacts, and publish the results of the research; more often, much of the salvaged material is sold and its cultural capital dispersed. Because states rarely have adequate funds to recover ancient shipwrecks and manage this material, however, commercial actors seem to be necessary components of every regulatory framework governing UCH.  In this context, this Article aims to reconcile private interests with the public interest in cultural heritage protection. Such reconciliation requires that international law be reinterpreted and reshaped in order to better protect and preserve UCH and that preservation of cultural heritage be recognized as a key component of economic, social, and cultural development. 
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Looting Underwater Sites

Three British divers have plead guilty to looting treasures from a wreck off the coast of Spain:

Peter Devlin, Malcolm Cubin and Steve Russ, all commercial salvagers from Cornwall, were arrested in June 2002 on suspicion of stealing gold and diamonds from a sunken ship off the coast of Galicia, in northwestern Spain.


The three faced prison sentences of up to six years each and heavy fines for theft and destruction of Spain’s cultural heritage. But at a court in Santiago de Compostella yesterday, they pleaded guilty in return for suspended sentences and a fine of €1,000 plus €2,500 costs each.

“We are now convicted criminals in Spain but relieved that after seven years the ordeal is finally over and we won’t have to go to prison,” Mr Cubin (38) a father of four from Truro, said. “We’re disappointed because it’s not what we wanted at all and still maintain we did nothing wrong, but there was nothing else we could do.”

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Treasure Hunting in South Texas

The Houston Chronicle has the story of a dispute before the U.S. District Court over who has title to a ‘barkentine’ which was sunk in 1822 when it was hit with a hurricane:

The Texas Historical Commission this week filed notice that it will ask the 5th U.S. Circuit Court of Appeals to let it into a lawsuit over who has legal claim to what might be a shipwreck buried 160 miles southwest of Houston, near the Mission River in Refugio County.
“It’s like highway robbery,” Internet treasure hunter Nathan Smith complained Wednesday of the state trying to take away his possible $3 billion claim two years after he filed the lawsuit.
Inspired by the National Treasure movies, Smith read up on lost loot and used the Internet to look for a barkentine that got lost on a South Texas creek in an 1822 hurricane that killed half the crew, leaving the other half to a local cannibal tribe.
Once he spotted something and checked it in person with a metal detector, Smith filed a lawsuit in early 2007. The case was tried last December in a Houston federal court, where he was opposed by landowners who say Smith’s shoeprint-shaped vision is on their land, which they say sometimes floods with the tides.
One issue here is how the court views the findspot. Smith or the state of Texas will have a claim only if the area is determined to be “navigable waters”. If not, the landowners would have title perhaps. Another issue are the heritage laws of Texas:
Steve Hoyt, a marine archeologist for the historical commission, said he cannot comment on the case but that “our intervention is to seek a determination that, if the vessel (if it exists) is in a navigable waterway, it is the property of the state of Texas.”
According to the Antiquities Code of Texas, Hoyt said, historic shipwrecks on submerged lands are the property of Texas, including all parts and contents of the vessel. Hoyt said such wrecks cannot be disturbed without a permit issued by the commission, and those are only for scientific and historic research.

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"The sea is a vast museum of shipwrecks"

So says Texas A&M University’s Prof. Shelley Wachsmann in a very good ABC (Australia) piece on the dangers facing underwater heritage sites in Greece, and a new Greek law which may open Greece’s coastline to increased diving.

 
Greece’s 1932 antiquities law says all artefacts on land and in the sea belong to the state, but it does not regulate scuba diving, . . .
A new law implemented in 2007 and designed to promote tourism opens most of Greece’s 15,000km coastline to scuba divers, except for about 100 known archaeological sites.
Greece’s archaeologists’ union and two ecological societies have appealed for the law to be rescinded.
Meanwhile, some tour companies are luring tourists with the promise of ancient artefacts.
“Scuba diving in Greece is permitted everywhere … Ideal for today’s treasure hunter,” says the website www.scuba-greece.com.
The director of antiquities at the Culture Ministry, Katerina Dellaporta, says metal detectors and bathyspheres allow treasure hunters to find artefacts with ease in the Adriatic and Aegean.
“It’s good to have tourism, but we must protect antiquities,” she said.
“Not every diver is an illegal trafficker… but we need to ensure these treasures remain for future generations.” . . . 

Most of the world-famous bronzes in Greece’s National Archaeological Museum, such as the 5th-century BC statue of Poseidon hurling his trident found off Cape Artemision, were salvaged from the sea.
Statues on land tended to be destroyed or melted down for coins or weapons.

Some were found in shallow-water shipwrecks like the one off Antikythera, believed to be a 1st century BC Roman ship carrying a haul of ancient Greek art back to Italy.

Other precious statues were dredged from the deep ocean in fishermen’s nets.
Greece offers handsome rewards to prevent relics falling into private hands.
It paid 440,000 euros ($872,000) to a fisherman for a female torso off the island of Kalymnos in 2005.
Questions or Comments? Email me at derek.fincham@gmail.com