Legal tangle mires sunken treasures

For nearly 300 years, the wreck of the Spanish galleon San Jose has tantalized archaeologists and salvagers alike. When it sank in 800-foot-deep waters off this fortified Spanish colonial city, it was carrying gold, silver and precious jewels that a group of treasure hunters believes are now worth $2 billion.

But a quarter of a century after the U.S. group, which originally included a Hollywood actor, a professional golfer and a convicted Watergate felon, staked its claim, exploration and retrieval of the wreck seem as distant as the sinking sun at dusk over this historic walled city.

The stalemate over the claim by Seattle-based Sea Search Armada is partly the result of sweeping changes in international marine law and judicial interpretations during the last two decades that have made business more difficult for shipwreck salvagers. Colombia is loath to give a private foreign group access to a valuable historical site, though exploration permits it issued nearly 30 years ago seemed to do just that.

Legal experts say the new rules are a reaction to the access that salvagers got to the Titanic and 17th century Spanish galleon Nuestra Senora de Atocha in the 1970s and 1980s, which earned them tens of millions of dollars. The rules include a 2001 international UNESCO pact signed by 16 countries, not including the United States or Colombia, that converted shipwrecks into a new class of protected historical landmarks, giving archaeological and historical preservation precedence over profit-driven salvage.

The evolving standards apply to the hundreds of ships carrying potentially billions in booty that sank in the Caribbean and Atlantic during the centuries of colonial plunder, when Spanish galleons, British frigates and Portuguese slavers plied the waters between Europe and the New World.

“The San Jose case is probably the best example of how the world has changed around salvagers,” said Ole Varmer, an attorney with the National Oceanic and Atmospheric Administration in Washington. “And it looks like the Colombian government changed its mind.”

The richest of all colonial-era wrecks may well be the San Jose. It was stocked to the hatches with bullion and coins from Peru as it sailed in a convoy toward the fortified city of Cartagena in May 1708. Before it reached port, a fleet of British navy ships intercepted the Spanish ships, and an explosion sank the San Jose, sending its treasures and 600 crew members to the ocean floor.

The ship was known to have had a rich cargo because the convoy was the first in 10 years sent by the Spanish crown to bring home colonial booty, said University of Minnesota historian Carla Rahn Phillips. Ship traffic had been halted during the War of the Spanish Succession.

A costly search

It was not until the last couple of decades that technological advances gave explorers adequate tools to search for treasure at such a depth. Robotic instruments now can distinguish precious metals from iron and reach once-impossibly deep sites.

But such technology is expensive, and Colombian officials such as Armando Lopez, special legal counsel to President Alvaro Uribe, say that the government can’t afford to explore the shipwreck on its own.

“There are too many other priorities, such as housing, health and welfare of Colombians,” Lopez said in an interview.

Formed in 1982, the Sea Search Armada partnership originally included actor Michael Landon, pro golfer Cary Middlecoff and onetime Nixon aide John D. Ehrlichman, all now dead.

All along, Sea Search Armada has proposed financing the venture, possibly in cooperation with scientific and academic institutions, if Colombia will only allow it to proceed. Investor attorney Danilo Devis of Barranquilla said the original investor group, which later sold its interest to SSA, got a permit in 1979 from the government to explore the shipwreck site and split whatever it found 50-50 with the Colombian state.

But years-long legal wrangling has ensued.

A Colombian Supreme Court case decided in July, in which both sides claimed victory, seems only to have hardened the standoff. The judges found that anything on board that is “national patrimony” belongs to the Colombian government, and everything else is to be split 50-50 between the investors and the government.

Investor attorney Devis said the government’s claims to patrimony, meaning objects of such cultural and historical significance that they belong to a nation in perpetuity, are inappropriate because the cargo came from colonial Peru. In a telephone interview, Jack Harbeston, managing director of the partnership, said he and his associates hoped to strike a deal with Colombia on what constitutes national patrimony that would let exploration begin.

If an agreement is not reached, the investors will sue Colombia in a U.S. court for “de facto expropriation,” he said.

Another twist to the case is that Sea Search Armada has presented no physical evidence that it had found the San Jose wreck, only instrument readings. Rather than give one set of coordinates for the ship’s location, it filed half a dozen possible sites about 10 miles offshore, thus increasing the area of its claim.

Still uncertain is whether Spain will make its own claim to the ship and its contents under the cultural heritage accord sponsored by the United Nations Educational, Scientific and Cultural Organization. The pact provides that flag vessels and their contents remain the property of the state.

Colombian official Lopez theorized that Spain may be waiting to weigh in until the legal issues are resolved.

Another legal test

On the other side of the Atlantic, a shipwreck site claimed by a Florida-based investor group also is testing the new international legal framework. The so-called Black Swan wreck is thought to contain such riches that a court case is shaping up even before the ship, its location or its nationality have been disclosed.

Odyssey Marine Exploration of Tampa, Fla., announced in March that it had found a wreck in international waters with 17 tons of silver and gold coins and other precious artifacts, providing little additional detail. Odyssey co-founders Greg Stemm and John Morris believe, based on expert examination of the cache, that the treasure could be worth $500 million.

But Spain has challenged Odyssey in U.S. federal court in Tampa, claiming rights to the shipwreck treasure if either it or the vessel turns out to be of Spanish origin.

The case isn’t expected to go to trial for nearly a year.

“According to the very limited information that Odyssey has disclosed so far, we believe the shipwreck was located near Cadiz,” a Spanish port that was a key departure point for colonial-era Spanish ships, said James A. Goold, a Washington lawyer representing Spain in the Odyssey case.

The coins that have surfaced are gold escudos and silver reales, Spanish coins at the presumed time of the Black Swan shipwreck, Goold said.

Odyssey’s founders contend that their discovery of the Black Swan site and importation of its treasure have been legal and in accordance with the U.N. Convention on the Law of the Sea, to which the United States and most seagoing countries belong.

The UNESCO convention on underwater cultural heritage protection, a different accord, is problematic, Odyssey’s Stemm said, because “it took the code of ethics of one user group of the resource -- and shipwreck artifacts are a resource -- and ignored all other user groups and constituencies.”

Shipwrecks are not of equal historical significance, and their artifacts are not of vital need to national heritage, he argued.

“We need to take a close look at every site and evaluate it on its own merits and significance,” Stemm said. “Some sites are going to be very important from the cultural and memorial standpoint, while others are going to be nothing but big piles of coins.”

University of Minnesota historian Phillips and NOAA attorney Varmer counter that keeping flagged vessels under state control is a sound principle.

“If you come down on the other side, then the whole world of shipping is up for grabs. That a U.S. Navy ship sinks off the coast of Italy and stays U.S. property makes sense to me in the interests of international law.”

Varmer said the United States has not signed the UNESCO cultural accord because it didn’t go far enough in guaranteeing nations’ access to vessels that sink in foreign territorial waters.

“What is really important is that we acknowledge as a country that the principles are important and that they override private property rights,” said Barbara T. Hoffman, a New York lawyer specializing in underwater heritage issues. “The salvors’ view has been one of first-come, first-served.”

chris.kraul@latimes.com

carol.williams@latimes.com

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Kraul reported from Cartagena and Williams from Miami.