Odyssey Marine Exploration, which recovered coins from the “Black
Swan” shipwreck in 2007, continues to appeal a ruling that the 17 tons
of treasure from the vessel belong to Spain.
Oral arguments in the case of Odyssey Marine Exploration v.
Kingdom of Spain were held before a three-judge panel on May 24 in the
United States Court of Appeals for the Eleventh Circuit, Atlanta.
The “Black Swan” is the name given to a major shipwreck discovered
in international waters on the floor of the Atlantic Ocean off the
coast of Portugal. It was found by Tampa, Fla., firm Odyssey Marine,
which announced the discovery on May 18, 2007.
Artifacts recovered from the Black Swan included more than 500,000
silver coins weighing more than 17 tons, hundreds of gold coins,
additional gold items and other artifacts. At the time Odyssey Marine
believed that the recovery constituted the largest collection of coins
ever excavated from a historical shipwreck site. Odyssey Marine’s
initial press release stated that it was not prepared to disclose the
possible identity of the shipwreck at the time.
Who owns the treasure?
For the duration of the case, Odyssey Marine has argued that a
“finder’s keepers” rule should give it rights to the treasure. Spain
has continued its argument that international treaties and maritime
law obligate Odyssey Marine to return the treasure to Spain.
Various legal battles have occurred since the discovery, much of
the dispute involving the classification of the Black Swan, which
Spain contends is the Spanish naval vessel the Mercedes, a
Spanish frigate that exploded in 1804. Spain never abandoned the
sovereignty of the vessel and has argued that the warship should be
given the same rights as American lost naval vessels.
Spain has called the warship a graveyard, arguing that U.S. courts
do not have jurisdiction in the matter and that Spain’s courts should
settle the argument. Attorneys for the U.S. Justice Department have
supported returning the treasure to Spain, contending that Spain
deserves protection for sunken warships.
Spain requested to give some of its allotted oral argument time to
attorneys representing the United States, reasoning, “The issues
presented in this case include the shared views of the United States
and Spain on the interpretation and application of the Treaty of
Friendship and General Relations between the United States and Spain,
33 Stat. 2105 (1903), and, in particular, its provisions requiring
recognition of immunities for the sunken vessels of both nations.”
In on Dec. 22, 2009, U.S. District Judge Steven D. Merryday issued
an order agreeing with the June 3, 2009, findings of a magistrate
judge who expressed doubts that an American federal court has
jurisdiction over the found property. Odyssey subsequently appealed to
the Eleventh Circuit Court of Appeals.
Judge Merryday ruled that the recovered coins are to remain in
Odyssey’s possession pending the decision by the Appeals court. He
wrote, “The ineffable truth of this case is that the Mercedes
is a naval vessel of Spain and that the wreck of this naval vessel,
the vessel’s cargo, and any human remains are the natural and legal
patrimony of Spain and are entitled in good conscience and in law to
lay undisturbed in perpetuity absent the consent of Spain and despite
any man’s aspiration to the contrary.”
Odyssey Marine responded to the ruling in a press release and in
its subsequent appeal that even if the coins recovered were once part
of the Mercedes, the ship is not entitled to the sovereign
immunity enjoyed by warships on strictly military service as it was
serving a commercial function when it sank.
Much of the oral arguments on May 24 centered on interpreting
contextual evidence found at the shipwreck that would indicate that it
was a warship, such as the presence and location of cannons, firearm
remnants and ammunition. If the ship is classified as a warship,
Spain’s claim would be strengthened as maritime law protects warships
sunk during times of battle from treasure seekers.
Yet, Odyssey Marine argues that the ship sailed during a time of
peace, and that the ship carried commercial merchandise, citing as
evidence that the ship’s gun decks were clogged with private merchant
cargo. As such, the ship would not have been able to serve its
function as a warship.
Peru has also requested rights to the wreckage, arguing that it
was part of the Spanish empire when the ship sank. Attorneys for Peru
have accused Spain of avoiding to directly address Peru’s claim,
arguing, “Peru’s ownership claim has the exact historical basis as
Spain’s because ‘Spanish’ ownership in 1804 subsumed Peruvian ownership.”
The Black Swan case received press attention earlier this year
when U.S. diplomatic cables released by WikiLeaks showed that the U.S.
government provided confidential customs documents prepared by Odyssey
Marine concerning the coins. The cables described how U.S. ambassadors
offered confidential customs documents to Spain, hoping to obtain
assistance in the return of a stolen Impressionist painting to a U.S.
citizen. The painting remains in a Spanish museum, which refuses to
release the artwork.
The Black Swan was also the subject of a Discovery Channel
Treasure Quest episode in 2009.
It may take several months for the three-judge panel to issue a
ruling, and that ruling may continue to be challenged by Peru and
descendants of the merchants who were sending cargo on the ship. ■