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The Claims of Spain - Death Knell for Shipwreck Exploration?

UnderWater Magazine - November, 2000
by Greg Stemm

One of the more controversial - and perhaps misunderstood - shipwreck issues that have surfaced during the past year is the legal saga of the shipwrecks of the Frigates Juno and La Galga. These two Spanish Colonial shipwrecks were lost off the coast of Virginia centuries ago, but are making headlines today. The headlines proclaim the end of commercial shipwreck exploration. But is that a valid conclusion?

As long as Americans have dreamt of the rich bounty of shipwrecks, Spanish shipwrecks were always the first to come to mind. Spain's exploration and conquest of the New World led to one of the largest transfers of wealth ever carried over the oceans of the world, which led to hundreds of shipwrecks laden with fabled riches. Along the coasts of the United States and throughout the Caribbean, explorers have spent their life savings - and their investor's money - chasing these lost fortunes of gold, silver, emeralds, pearls and other priceless objects.

Most of the earliest "treasure hunters", including Mel Fisher, Robert Marx, Burt Weber and a host of lesser-known divers and adventurers built their entire reputations and fortunes around the search for Spanish treasure. Even today, Spanish gold and silver are inseparable from the lore of shipwrecks.

Throughout the years of searches for these Spanish treasures, encapsulated in priceless underwater cultural sites, many have wondered why Spain has never laid claim to what could be considered her own riches. The commercial explorers generally had a good relationship with Spain, a friendly dialogue and exchange of cultural material and research was considered the rule rather than the exception. The research that ultimately led to the discovery of many Spanish shipwrecks was found in the archives of Seville, where researchers for commercial explorers were welcome. Presentations of artifacts were made to the Spanish Crown and the Spanish government appeared to give tacit approval to the excavation of her shipwrecks in the waters of the United States.

As trumpeted loudly in the press, it may seem to some that those days are now over. A Federal Appeals court in Virginia ruled this past summer that Spain owned the remains of two of her warships lost two centuries ago, the Juno and La Galga. Both were the victims of terrible weather, which perhaps was just the precursor to the legal storms that their losses have caused in the courtrooms of Norfolk.

Successful real estate investor and entrepreneur (turned shipwreck explorer) Ben Benson ploughed well over a million dollars into research and exploration that suggested that he had located the final resting place of both ships. His company, Sea Hunt, negotiated a deal with the State of Virginia that he believed was sufficient to enable him to go to work on these shipwrecks. All indications suggested that Ben intended to engage in a first-class archaeological excavation of the sites, which is one of the reasons that the State of Virginia was willing to negotiate a deal with Benson.

Having made his deal with Virginia, Ben was shocked when the US Federal Government and the Kingdom of Spain intervened in court to assert the sovereign rights of the Spanish Government, who claimed that the sunken frigates were theirs.

The ensuing court case and the recent appellate decision which sealed the issue - in Spain's favor (barring intervention by the Supreme Court) have apparently caught a lot of people off guard. The move by Spain has met with incredulity from many in both the legal and salvage community. Should they have seen it coming?

While it is easy to assume that Spain is motivated strictly by economic reward, hypothesizing that the country is seeking to fill her coffers with lost riches, I believe that the cost of managing the Spanish government's shipwreck resources around the world will potentially offset any windfall profits. Add up all the possible riches from Spanish sovereign shipwrecks and the total amount would hardly register in Spain's annual budget.

Consider instead that perhaps Spain is following a path being pursued by many countries today - searching the cultural horizon for historical insights into their own heritage, while attempting to manage their underwater resources for the benefit of future generations. There is a renewed interest worldwide in reclaiming the glorious past to restore a sense of pride in modern cultures that are hungry for meaning and national pride. Countries such as China, Greece, Egypt, Turkey, Cyprus and others with ancient traditions of art and commerce are stepping forward to reclaim previously "exported" property from the museums of the world. Spain has made it clear that they have a real interest in setting up a program to properly manage their cultural resources, no matter where they lie in the world, as well as creating a strong historical link with coastal states in whose waters Spanish shipwrecks may lie. I would say that this has little to do with monetary value, and a lot to do with nationalism and self-respect.

Against this backdrop, the United States, United Kingdom, France, Germany, Japan, Russia and Spain have insisted that their rights to their own warships be recognized. These countries feel strongly that their sunken warships are government property and have not been abandoned, except in specific cases. Even at the negotiations of the UNESCO Convention for the Protection of Underwater Cultural Heritage, these countries have stood steadfast in their belief that they should have the final say in the disposition and control of their sunken warships.

In backing the Spanish position, the U.S. Justice Department raised the ire of many salvors and engendered nationalist rhetoric. The critics of the Justice Department's support viewed it as a betrayal of American interests, and perhaps even a well-aimed salvo at the commercial shipwreck community.

The Justice Department, on the other hand, argued that they had backed Spain in order to ensure that Spanish warships were treated as sovereign property and "honored graves", and that they should not be subject to "exploration or exploitation" without Spain's permission.

As easy as it might be to see this as an anti-salvor initiative, there is likely a deeper, and much more significant political and diplomatic motive at work. It is no coincidence that the United States and the United Kingdom are strong supporters of respect for sovereign immune rights over warships, which of course would include not only shipwrecks, but lost planes, missiles and other implements of war, some that contain highly valuable and even top-secret military data. These countries jealously guard their lost military property at all costs, and extending the concept of protection of shipwrecks back 250 years is probably a collateral effect of this stringent policy.

Another issue of concern is the unauthorized disturbance of the final resting-place of servicemen and women lost on these ships and aircraft. There is significant debate over whether remains even exist on many of the sites; however the issue of war graves is not necessarily dependent on finding skeletons on a shipwreck.

Some might argue that protecting a 250 year old site could not possibly be a national security imperative nor disturbance of a grave site, but where does one draw the line? At UNESCO negotiations, members of the archaeological community have suggested that once a warship is 100 years old, it is no longer government-owned property; or at least that the coastal country in whose water it is found should have the rights to manage the shipwreck as underwater cultural heritage. For the most part, the Navy representatives advocating application of the concept of sovereign immunity aren't buying itthey want to make certain that any archaeologists or foreign governments don't interfere with the sites without their express permission. This is not just directed at salvors. It is this stance that suggests to me that perhaps the real issue at work here with the Juno and La Galga relates to the United States' desire to have their own property rights and war graves respected throughout the world. It is logical, therefore, that they would endeavor to show their respect for the warships of other countries. Very simply put, it's reciprocal diplomacy.

So that's all interesting, but here's the real question that keeps getting batted around by the media: Does this sound the death knell for the commercial shipwreck industry?

Hardly. As the line between archaeological contractors, shipwreck explorers and archaeologists continues to blur, I predict that the assertion of sovereign control of sunken warships throughout the world may actually serve to create a new industry. Spain has now taken the first step in asserting ownership of thousands of its sunken warships. With that assertion comes the responsibility for managing these sites as the important underwater cultural heritage properties they represent.

The same goes for the shipwrecks of the Netherlands, France, the United Kingdom and many others who have lost military craft throughout the oceans of the world. Now that the Navies of these countries have asserted ownership and control, they will need to provide the infrastructure for management - and I will go out a limb and suggest that you can count on military funding long before the funding of cultural initiatives.

To the extent that these shipwrecks are in deep water (and many are), these governments will need to fund new deep technology for management, survey and excavation of these unique resources. In danger from the continued ravages of nature, inadvertent damage from industry and fisheries will provide the call to action that prompts the dedication of funds.

The net result? We may see a reduction in some "no cure-no pay" projects where investor's money is put at risk in hopes of finding a government shipwreck that will pay off in huge multiples. But these traditional shipwreck operations may very well be supplemented by contracting arrangements that may not have a huge payout, but will be a good steady business - the kind that underwater contractors build can build an industry around.

There is a widely held perception that this change will have a negative effect on commercial shipwreck exploration. Perhaps, however, it heralds a new era of growth for legitimate business interests and private sector shipwreck exploration. In change lies opportunity, especially for those willing to consider new paradigms. Without any doubt, we are going to see lots of changes on the legal and political horizon for shipwreck resource management in the near future; the decision on the Juno and La Galga is most likely just the tip of the iceberg. Those that are willing to adapt will likely find interesting opportunities. Those that are betting against change may be left behind.

The United States Federal Court has recognized that Spain now owns her sovereign shipwrecks in the waters of the United States. Unless there is a reversal of the Appellate court's decision by the Supreme Court, this opinion will serve as an important legal precedent throughout the United States. Every federal agency, and perhaps even every state, can be expected to seek Spain's input before permitting access to sunken Spanish warships. This is the perfect time to reach out and provide technical solutions to the resource management challenges that will be faced by the Kingdom of Spain. Let's offer to help manage their property, and build a sound, ethical and long-term business in the process.

UnderWater Magazine is the bimonthly journal of the Association of Diving Contractors International, Inc. It is published by Doyle Publishing Company for the commercial diving, ROV, and underwater industries. Entire contents © 1993 - 1999 Doyle Publishing Company. Reproduction in whole or in part without express written permission is prohibited.

©2000 Greg Stemm

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