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SUPREME COURT NIXES "FINDERS KEEPERS"
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(March 15, 2001) The Supreme Court threw 300 year old maritime law to the wind when it upheld a lower court ruling that essentially scuttles the concept of "Finders Keepers" in the recovery of abandoned sunken ships. This and an upcoming UNESCO treaty threaten to end treasure hunting as we know it. Will Cuba become the last stronghold of free-market salvage?
On February 20, 2001, the U.S. Supreme Court upheld a decision by the Fourth Circuit Court of Appeals that awarded two centuries-old sunken Spanish ships (one sunk in 1750, the other in 1802) found and salvaged off the coast of Virgina by an American salvage company, Sea Hunt Inc, back to Spain in both ownership and salvage rights.

This ruling is a doozy - the awarding of centuries-old shipwrecks to their country of origin, rather than to their finder. In this latest chapter in a series of decades-long legal battles between treasure salvors and various government agencies, the Fourth Circuit Court of Appeals has ruled that a centuries-old shipwreck has not been ‘abandoned’ unless its owner, at some time in the past, formally declared it so. This declaration by the court has thrown wide open the ownership question of newly-discovered artifacts and treasure from ships that sank centuries ago.

For decades, questions of ownership of ancient treasure vessels hinged upon the legal concept of ‘abandonment.’ Modern salvors have relied on the courts to award them ownership of old abandoned shipwrecks on a ‘finders keepers’ basis when the ships’ owners have been out of the picture for, say, 100 years or more.

What is abandonment? Imagine you went fishing off the Florida Keys one day, and you got caught in a sudden squall. Your boat sank on a shallow reef, and you had to swim to safety. Now, as soon as the weather clears, you’re probably going to make an effort to go out and recover it. It's your boat, and just because you swam away from it during a storm doesn’t mean you ‘abandoned’ it.
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Now imagine you're on a different fishing excursion, in your boat again off the Florida Keys. This time, the weather stays clear and beautiful, but the fishing is a little slow. While idling the time away, you look down in the clear, shallow water near a coral reef and you spot the shape of an bronze cannon on the ocean floor. Suspecting it's from an old wrecked galleon, you dive into the shallow water and find a piece of eight in the sand. Now, clearly, that old wreck had been abandoned, and that piece of eight is yours to keep. Why? Because ‘finders keepers.’

This concept was most famously tested by Mel Fisher in his battle for the remains of the Atocha. He filed claim on the sunken ship, and his claim prevailed when he demonstrated that Spain had not made any salvage efforts on the 1622 shipwreck of the Nuestra Senora de Atocha for hundreds of years.

Starting with Kip Wagner's first successful dive on the 1715 Fleet of Spain wrecks off Florida's coast in 1961, modern salvage equipment and techniques have led to the recovery of much gold and silver that had been long lost at the bottom of the ocean. These successes have, of course, led to jealousy, both among competing salvors, and local, state, and federal agencies that find themselves with the power to license and regulate these 'harvests of the seas.'

Mel Fisher, for instance, spent millions of dollars in search of and in the recovery of the Spanish galleon Atocha off the Florida Keys. But he was forced to spend millions more on attorneys’ fees in the legal defense of his salvage rights, including fights with the state of Florida, local authorities around the Keys, and the Federal government itself. After fifteen years of hard work and dedication and the loss of his son and daughter-in-law by drowning, Mel Fisher had to finally fight the Department of the Interior when it filed suit to claim the treasure he had recovered.

Fisher finally prevailed in the Supreme Court in his fight for the riches that he lawfully found and brought up from the depths of the sea. But there's something about treasure. It seems to stir up avarice and jealousy in everyone, from a hired diver who might pocket a coin or two, to a bureaucrat who just finds something wrong with the thought of individuals freely plucking gold and silver from the ocean floor.

As Eugene Lyon writes in his book The Search for the Atocha, "The 1715 treasure worked its magic upon Florida, the nation, and the world. National publicity culminated in an article in National Geographic Magazine in January 1965. The sheer beauty of the coins and artifacts and their dollar value - estimated at several millions - awoke adventurers everywhere. Treasure fever struck Florida. The 1715 find also stirred strong reactions among historians, archaeologists, and government officials in Florida."

In the case recently ruled upon by the Supreme Court, concerning the Spanish ships La Galga and Juno, there is evidence that the Department of Justice encouraged Spain in their suit to recover their long-lost ships and whatever treasure was aboard. But why would the U.S. Department of Justice be interested in squelching sea salvage operations off the U.S. coast, and relinquishing the spoils to Spain?

Pat Clyne of Treasure Salvors Inc contends that this action is part of an effort to ratify a United Nations Educational, Scientific, and Cultural Organization (UNESCO) treaty that would, in his words, "turn over American coastal waters to Spain, England, France, and anyone else to come and work off our shores," an act that would be the end of all U.S. private salvage operations.

Coin World goes on to quote Clyne, "All commercial salvage would be banned. Under admiralty law, which has been around for 900 years, you have due process in the courts. Under the UNESCO treaty this would be done away with and replaced with an administrative regime and there would be no due process."

The New York Times wrote that the move was part of an 'aggressive effort' by Spain to re-establish their old interest in salvage of their long-lost ship, and an intention to work with nations in whose waters Spain's old sunken ships may lie. "It's a turning point," the Times quoted Rafael Rodríguez Ponga, director of cultural affairs in the Foreign Ministry in Madrid. "It's a very important step in the recognition of the rights of Spain all over the world." The Times further contended Spain's re-appropriation of these old ships and artifacts, and their study by scholars, would "illuminate and deepen appreciation of Spain's past."

That sounds like an agreeable and harmless statement, until you realize that any ‘illuminations’ about the Spanish treasure fleet in the New World are not going to be particularly flattering to Spain today.

"The contents never did belong to Spain," says Pat Clyne of Treasure Salvors, as quoted by Coin World in their March 19, 2001 edition. Treasure fleets of centuries ago transported back to Spain the ill-gotten gains of the New World - First the gold bars made by melting down religious and cultural artifacts of the indigenous peoples of Mexico, Central, and South America. And after the destruction of the Aztec and Mayan treasures, the holds of the treasure galleons were then filled with the products of the enslavement of the native peoples of America, who spent short, brutal lives in hellish mines such as Potosi so that gold and silver could enrich the Spanish court.

But recently, modern Spain stood aside while Mel Fisher salvaged the Atocha. At the National Geographic headquarters in Washington D.C. in 1977, Queen Sophia of Spain graciously accepted his gift of an ancient bronze cannon from the wreck, without a peep about the estimated $400 million in treasure that Fisher was after. Over the past few decades, Spain has quite properly ignored the salvage by others of what was once their blood-soaked treasures, now washed clean by centuries in the briny deep.

The mystery is why the Justice Department got Spain into this squabble.

Compounding the irony, just last month the government of Cuba announced joint ventures with a Canadian sea-salvage firm to hunt for, recover, and market the treasures of the many Spanish treasure galleons amd warships which sank off Cuba's waters since the 16th Century. Cuba and the salvage company will split 50/50 any treasures recovered. With today's efficient metal-detection, scuba, and salvage equipment, the harvest in Cuba's formerly off-limit waters should be rich indeed. Havana was the final port stop in the New World for flotillas headed for Spain from about 1550 to the 18th Century, and hurricanes and cannon-fire from privateers sank many a heavily-laden galleon.

Does anyone think today that Fidel Castro would follow the U.S. lead and consider granting Spain exclusive salvage rights in Cuban waters?

 

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