Colombia fights U.S. diver for treasure

[Judi Lynn]

Source: Houston Chronicle/Associated Press

June 3, 2007, 1:49PM
Colombia fights U.S. diver for treasure

By JOSHUA GOODMAN Associated Press Writer
© 2007 The Associated Press

BOGOTA, Colombia — The Spanish galleon San Jose was trying to outrun a fleet of British warships off Colombia's coast on June 8, 1708, when a mysterious explosion sent it to the bottom of the sea with gold, silver and emeralds now valued at more than $2 billion.

Three centuries later, a bitter legal and political dispute over the San Jose is still raging, with the Colombian Supreme Court expected to rule this week on rival claims by the government and a group of U.S. investors to what is reputed to be the world's richest shipwreck.
(snip)

The government may also be motivated by dollar signs. Harbeston believes that if sold skillfully to collectors and museums, the San Jose's treasure could fetch as much $10 billion — more than a third of Colombia's foreign debt.
(snip)

"Without a doubt the San Jose is the Holy Grail of treasure shipwrecks," said Robert Cembrola, director of the Naval War College Museum in Newport, R.I.



Read more: http://www.chron.com/disp/story.mpl/ap/world/4858002.html

---

http://colombia.indymedia.org.nyud.net:8090/images/crawford.jpg

Colombian President Uribe and his American friend

[Horse with no Name]

1. Modern day pirates n/t

[SayWhatYo]

20. The Americans?

[Solo_in_MD]

2. Shouldn't the title be something like "Columbia abrogates prior agreements with no penalty"

[Bacchus39]

7. no, the headline should spell Colombia correctly at least

I hope Colombia gets to keep their own treasure.

[Solo_in_MD]

9. Point taken on my spelling, but they should be penalizing for breaking agreements

[Bacchus39]

11. who would do the penalizing?

I think a generous finders fee is sufficient enough. I would certainly want one myself for making the find, for the recovery, and return a nice profit on the investment. nevertheless, it is treasure located in Colombia's territorial waters and it is their right to decide its disposition.

[Divernan]

14. No, it is not Columbia's right. There was a contract in place.

See my detailed explanation of admiralty law farther down in this thread.

[Bacchus39]

15. Colombia, with two "o"s, their Supreme Court is the one

deciding. the article states there are rival claims and Spain is making a claim as well.

[Divernan]

16. Well, it would be a terribly destructive precedent for their Supreme Court

to rule against the salvage group, and in violation of centuries of international contract law, and millennia of maritime law. Given the undisputed fact that ColOmbia had entered into a binding contract, any traditional court would have ruled in favor of the salvage group as a matter of law. Sounds like "rule of law" is going by the boards in ColOmbia.

[Bacchus39]

19. Colombia is arguing the treasure is part of their national heritage

the location of the treasure may also be located within their territorial waters which would appear to strengthen Colombia's argument. I do not think it is as clear cut as you are painting it.

[Divernan]

21. Of COURSE it's within their territorial waters!!! That's why a contract was required.

The treasure has not changed in it's origin from what it was when the Colombian govt. entered into the contract with the salvors. Contract law tends to be absolutely clearcut. Colombia's actions in this case are the equivalent of Bush's "signing statements".

I can't give you courses in international law, admiralty law and contract law here. I have taken all three and done a lot of practise in contract law - with an occasional aspect of international law in some cases. In another post in this thread, I did give the basics on how salvage of sunken ships is treated by the law.

Your emotional position is illogical and untenable. Have you never entered into a contract? Try to follow this. You contract with a bank to get a mortgage, at a specific rate of interest, say 7 percent. Two years later the president of the bank retires and a new president assumes office. The new president tells you he's decided to arbitrarily and unilaterally change the terms of your mortgage, increasing your mortgage rate by a factor of four. Now you are supposed to start paying 28% a month. Of course, banks don't do this. They are locked in to the rates, i.e., terms of the original contract/mortgage.

But hey! What do I know? Why do I bother your beautiful mind with FACTS about contract law, Law of the Sea and international law!?!?! It's what YOU FEEL that matters - not unlike the Rove/Gonzales approach to international treaties governing torture. Why don't you call up your mortgage holder, should you have one, and tell them that from now on you're only paying 2 percent interest? Because YOU think 2 percent is "sufficient enough", to use your term. And since you are so hot to be the spelling police, I'll point out that "sufficient enough" is a redundant term.

Why am I getting so upset with your attitude on this matter? It's not about the sunken treasure, whatever its value. And it's nothing to do with you personally, cause I don't know anything about you. It is about your support of Colombia's casual disregard for the Rule of Law. The Rule of Law is the sine qua non of our civilization. Without the Rule of Law, chaos ensues, and we regress to the war of all against all. Bush, with his biased Supreme Court and other federal court appointments, and his signing statements, and his castrating of the Justice Department has not only mounted a devastating attack on the Rule of Law, he has also infected many individuals with a disrespect for the law. Many times on DU, an OP will ask what the law is in a certain situation. The majority of responses are not from anyone who actually knows (and cites/links to) what the law is, but people saying "Well, I'm not a lawyer, but I think the law SHOULD (emphasis added) be . . . (followed by their personal opinion)."

[Bacchus39]

22. slavery used to be the "rule of law" as were dictates from monarchs and dictators

yeah, I don't know why you are getting so upset either. there was a contract, it was voided by the government. Now the Supreme Court of that same government is deciding on the disposition of the treasure.

The US has violated numerous contracts and treaties. ask the Native Americans if you don't believe me. as far as I can tell, the US has not descended into chaos and anarchy.

Welcome to the real world, where governments say what the law is. depending upon the country you are in your mileage, legal interpretation, and administration of justice will vary.

[Divernan]

24. True, here in the US, Bush does say what the law is, regardless of Congress.

This was not a matter of a sovereign power formally changing a law; it is a matter of a country ignoring a law (contract law) which it continues to selectively enforce and rely upon to its own advantage in the functioning of its own country and business interests. I agree that the US has violated numerous treaties, and certainly the Bush administration has withdrawn from a number of treaties, refused to enforce regulations of its administrative agencies, and selectively prosecuted the laws based on political affiliations. That never makes it right or laudable, whether it is native Americans or foreign business interests being ripped off for profit. Bush's disregard for international law of war, the Geneva Convention, etc., have certainly resulted in chaos and anarchy in Iraq.

As to Colombia, there is a great deal of chaos and anarchy there, with kidnapping, torture, extortion and assasination being used as political weapons by various narco-terrorist groups.

One of the admirable aspects of the European Union is that it has a court which prevents countries from acting the way that Colombia is in this matter. I hope that the burgeoning ties and treaties between the Latin American countries will result in a similar Union there.

[Bacchus39]

27. I am unfamiliar with Colombian contract law

but I do not think Colombia's claims are arbitrary either. if the wreck is located within their territorial seas as the article would seem to indicate, then they have a stronger case to retain the treasure.

while all of those things occur in Colombia are true, chaos and anarchy are relavent. Colombian society functions to a relative high degree despite those problems. Now driving on the Colombian road system could accurately be described as chaos and anarchy.

[Divernan]

28. Here's an example from Brazil re a 1726 wreck at depth of 4500 ft.

(Yes, I know it's a different Latin American country, but it gives you an idea of how these deals are typically handled.)
Brazil was trying to block recovering any treasure and had the right to do so. The salvors had been granted permits only to explore, and the salvors had NOT negotiated a separate, required salvage agreement with the Brazilian navy.

www.shipwreck.net/article2.html

"The other potential problem is Brazil's 1988 Constitution, under which Odyssey and its Brazilian associate, the Underwater Archaeology Research Consortium, known by its Portuguese acronym Conpas, have permits only to explore and are forbidden to recover anything unless they negotiate a separate salvage agreement with the Brazilian Navy."
********************************************

I'm a certified wreck diver - for recreational purposes only. I know that tourists/recreational divers are specifically warned not to take anything from the shipwrecks, and that the customs people carefully check luggage when you're on your way home to make sure you haven't taken anything. That's fine. I respect each country's right to protect any treasures within its territorial waters. But I also love to see items recovered from the deep - at museums, exhibits, etc., and I know that most of the countries where such wrecks are to be found do not have any funding to mount searches for such treasures. Were it not for the private salvage outfits, and the very expensive expeditions they fund, we'd never see anything from the real depths. The wrecks I've explored have been in the 60 to 150 foot depths - and the World War II Japanese merchant marine cargo ships in Truk Lagoon are still quite intact. I have seen and touched, but not moved from their locations, china, silver flatware, coins, bicycles, jeeps, bullets, tanks, bottles and even a Zero plane. These salvors have to be able to rely on the contracts they negotiate with the relevant countries.

[customerserviceguy]

32. Sometimes

it's like talking to a wall, isn't it? "Feelings" trump everything in some people's minds...

[rayofreason]

3. I wonder...

...if John Edwards has a stake in this one.

http://people.monstersandcritics.com/features/article_1308879.php/John_Edwards_claim_to_recovered_sunken_treasure_

If not, he can stll make a bundle by getting in on the litigation!

[ret5hd]

4. So a guy gets dissed 'cause he is in a hedge fund that invested in a salvage company?

If that's the best ya' got, keep 'em comin'.

[Centered]

30. Agreed

It is ridiculous to think any more or any less of the "Edwards Factor" with regards to this discovery. John Edwards as well as the rest of the investors of the fund had the marvelous fortune (heh heh get it??) to have chosen a fund that took a gamble on an investment. It would be akin to any one of us who may have a 401k which includes a fund that contains a portion of Exxon stock, we participate in a fund but that would be the extent of our connection to the companies the fund invests in on our behalf.

I would even point out that I believe last year didn't a Republican congressman or senator win part of the power ball? (I forget the specifics) I don't believe I recall much scrutiny other than a handful of news reports discussing the "blind luck" of this individual.

Both are examples of just exactly what this is... luck

[Judi Lynn]

5. American right-wingers involved versus the Colombian right-wing gummint.

From the article:

Anxiously awaiting the decision is Jack Harbeston, managing director of the Cayman Islands-registered commercial salvage company Sea Search Armada, who has taken on seven Colombian administrations over two decades in a legal fight to claim half the sunken hulk's riches.

"If I had known it was going to take this long, I wouldn't have gotten involved in the first place," said Harbeston, 75, who lives in Bellevue, Wash.

In 1982, Sea Search announced to the world it had found the San Jose's resting place 700 feet below the water's surface, a few miles from the historic Caribbean port of Cartagena. Under well-established maritime law, whoever locates a shipwreck gets the rights to recover it in a kind of finder-keepers arrangement meant to offset the huge costs of speculative exploration.

Harbeston claims he and a group of 100 U.S. investors — among them the late actor Michael Landon and convicted Nixon White House adviser John Ehrlichman — have invested more than $12 million since a deal was signed with Colombia in 1979 giving Sea Search exclusive rights to search for the San Jose and 50 percent of whatever they find.
(snip)

If Colombia DID decide to keep the ship in its territory for itself, they wouldn't have to beg for as much money from the United States to use to fund their military operations against the leftist guerrillas. Or maybe they'd just palm it and STILL keep taking huge payoffs from the US overburdened middleclass and poorer taxpayers.

~~~~~~~~~~~~~~~~~~

Background, from 2004:

Last Update: Friday, February 13, 2004. 4:30pm (AEDT)
US, Spain lose booty in Colombian courtroom
The galleon San Jose, jewel of the Spanish crown, sank in 1708 with tons of gold and silver aboard, but the precious booty has slipped through the fingers of US and Spanish treasure hunters in a Colombian courtroom.

The court agreed with attorney Antonio Jose Rengifo's argument that the Colombian people owned the estimated $US5 billion treasure-trove.

A Bogota tribunal denied a claim by US Sea Search Armada (SSA) to half of the booty for having discovered the ship, which the English navy had sunk in the Caribbean.

Honouring the claim would be "unconstitutional and violate the collective ownership of the national heritage".

The British sank the galleon on June 8, 1708, with 600 sailors and passengers aboard, 10 nautical miles from the port of Cartagena in 230 metres of water.

"This historic decision ends 15 years of lawsuits, which SSA brought in Colombian courts in an attempt to claim half the value of the San Jose cargo," Mr Rengifo, a maritime law expert, told AFP.

The tribunal's decision came after Bogota's recent rejection of a UNESCO convention on undersea cultural heritage, which backed Spain's claims to its sunken galleons around the world.
(snip)

http://www.abc.net.au/news/newsitems/200402/s1044643.htm

~~~~~~~~~~~~~~~~~~~~~

Ah, ha ha ha ha. They've even gotten Republican Indiana Representative, Miami Cuban "exile" donation grabbing, and cause championing Dan Burton sticking his impeachment managing snout into this:

LEGAL REPRESENTATIVE and MANAGING ATTORNEY, SEA SEARCH ARMADA GROUP, Barranquilla, Colombia (1988 to 2000). On behalf of a U.S. investor group I was responsible for more than 12 years for negotiations and managing outside counsels in contract litigation against the Republic of Colombia to sunken treasure troves off valued at approx. $10 billion, Sea Search Armada vs. President of the Republic of Colombia, Superior 3rd Judicial District of Barranquilla. Congressmen Dan Burton described the case as "th largest private claim by American citizens against a foreign state pending in the world. . . . "
(snip)

http://home.earthlink.net/~isidoror/id1.html

[kwassa]

6. this has been going on for 25 years!

other excerpts from the article:

In 1982, Sea Search announced to the world it had found the San Jose's resting place 700 feet below the water's surface, a few miles from the historic Caribbean port of Cartagena. Under well-established maritime law, whoever locates a shipwreck gets the rights to recover it in a kind of finder-keepers arrangement meant to offset the huge costs of speculative exploration.

Harbeston claims he and a group of 100 U.S. investors — among them the late actor Michael Landon and convicted Nixon White House adviser John Ehrlichman — have invested more than $12 million since a deal was signed with Colombia in 1979 giving Sea Search exclusive rights to search for the San Jose and 50 percent of whatever they find.

But all that changed in 1984, when then-Colombian President Belisario Betancur signed a decree reducing Sea Search's share from 50 percent to a 5 percent "finder's fee."

(jump)

Wherever the hulk lies, marine archaeologists say advances in diving, sonar and metal-detection make it possible to find almost any underwater wreck today. The problem is fending off rivals for whom the glint of gold is too powerful to resist.

"It's like when you light a lantern in the forest and you discover all these insects you didn't know were there before are now descending on you," said Peter Hess, a Delaware lawyer who represents salvage companies.

[Judi Lynn]

8. Even Jesse Helms got involved, according to the article:

The San Jose has become a national obsession among Colombians, for whom the "gringos" are the latest in a long line of foreign plunderers dating back to the Spanish conquerors. But that has not prevented three lower courts from ruling that Sea Search is entitled to half the treasure.

Several U.S. congressmen and the State Department also took up the cause, warning in letters to successive Colombian presidents that what they considered a de-facto expropriation could jeopardize unilateral trade privileges.

Luis Felipe Barrios, a former government attorney on the case, said pressure from Washington was so intense that in the late 1990s he received a fax from former Sen. Jesse Helms, then-chairman of the Senate Foreign Relations Committee, threatening to revoke his visa.

Rep. Dan Burton, R-Ind., one of the most active campaigners on Sea Search's behalf, did not return calls or e-mails seeking comment. Most of the dozen other congressmen who took part in the letter-writing campaign have since retired.
(snip)

Here's a different source for people who can't get the Houston Chronicle link to work, in case it's free subscription only:

http://www.komotv.com/news/7814497.html

[Miss Chybil]

10. Finders keepers...

I don't know if that's the "right" way to look at it, or not. I just felt like saying it. I would think whoever owned it before it sunk would still own it. If they need help bringing it up, they could pay somebody to do that.

I dunno. I'm not a lawyer and I know nothing about sunken treasure. So, I'm just throwing out a couple of cents.

[Bacchus39]

12. you mean Spain???

no way, they took enough gold already from Latin America. pay the guy for the recovery and allow a nice profit, but it belongs to the country who has jurisdiction over where it is currently located.

[Miss Chybil]

18. If you read Divernan's post

you will see where the original owner (or, the insurer) would still have an interest in the property. So, my idea isn't so far-fetched, after all.

[Divernan]

13. According to the Admiralty Law class I took in law school, the salvors should get 50%

First of all, as detailed in the article cited in the OP, the salvage company had contracted with the Columbian government to get 50% of any treasure found. International relations would go to hell in a hand basket if countries were allowed to void all international contracts every time a new president/prime minister came into office. That is precisely what Columbia is attempting to do in this case.

"Harbeston claims he and a group of 100 U.S. investors . . . have invested more than $12 million since a deal was signed with Colombia in 1979 giving Sea Search exclusive rights to search for the San Jose and 50 percent of whatever they find.

But all that changed in 1984, when then-Colombian President Belisario Betancur signed a decree reducing Sea Search's share from 50 percent to a 5 percent "finder's fee."

*********************************
There are two types of salvage: contract salvage and pure (sometimes called "merit") salvage. In contract salvage the owner of the property and salvor enter into a salvage contract prior to the commencement of salvage operations and the amount that the salvor is paid is determined by the contract. This is what happened between the Salvage group & the govt. of Columbia. The most common salvage contract is called a "Lloyds Open Form Salvage Contract."

In pure salvage, there is NO contract between the owner of the goods and the salvor. The relationship is one which is implied by law. The salvor of property under pure salvage must bring his claim for salvage in federal/national court, which will award salvage based upon the "merit" of the service and the value of the salvaged property.

Pure salvage claims are divided into "high-order" and "low-order" salvage. In high-order salvage, the salvor exposes himself and his crew to the risk of injury and loss or damage to his equipment in order to salvage the damaged ship. Examples of high-order salvage are boarding a sinking ship in heavy weather, boarding a ship which is on fire, raising a ship or boat which has already sunk, or towing a ship which is in the surf away from the shore. Low-order salvage occurs where the salvor is exposed to little or no personal risk. Examples of low-order salvage include towing another vessel in calm seas, supplying a vessel with fuel, or pulling a vessel off a sand bar. Salvors performing high order salvage receive substantially greater salvage award than those performing low order salvage.

In both high- and low-order salvage the amount of the salvage award is based first upon the value of the property saved. If nothing is saved, or if additional damages is done, there will be no award. The other factors to be considered are the skills of the salvor, the peril to which the salvaged property was exposed, the value of the property which was risked in effecting the salvage, the amount of time and money expended in the salvage operation etc.

A pure or merit salvage award will seldom exceed 50 percent of the value of the property salved. THE EXCEPTION TO THAT RULE IS IN THE CASE OF TREASURE SALVAGE. Because sunken treasure has generally been lost for hundreds of years, while the original owner (or insurer, if the vessel was insured) continues to have an interest in it, the salvor or finder will generally get the majority of the value of the property. While sunken ships from the Spanish Main (such as Nuestra Señora de Atocha in the Florida Keys) are the most commonly thought of type of treasure salvage, other types of ships including German submarines from World War II which can hold valuable historical artifacts, American Civil War ships (the USS Maple Leaf in the St. Johns River, and the USS Monitor in Chesapeake Bay), and sunken merchant ships (the SS Central America off Cape Hatteras) have all been the subject of treasure salvage awards. Due to refinements in side-scanning sonars, many ships which were previously missing are now being located and treasure salvage is now a less risky endeavor than it was in the past, although it is still highly speculative.

[Solo_in_MD]

17. Glad to see someone else with some knowledge on Maritime Law

[customerserviceguy]

23. Thank you

for standing up for the rule of law. It is what makes civilized people civilized.

[Nihil]

25. Ha ha ha - nice one!

> ... the rule of law. It is what makes civilized people civilized.

:rofl:

That would be even funnier if stated by an American!

(Clue: If it takes a "law" to make someone "civilized", they're not.)

[customerserviceguy]

29. Okay, let me restate

Civilized people agree to social contracts with each other, that are codified as rules of law. The rule of law arrived at in an ethical manner is a SIGN that perhaps you're dealing with people who just don't act based on "feelings". "Feelings" often lead to war.

[Nihil]

31. Now *that* I'll agree with! (n/t)

:toast:

[Divernan]

26. You're welcome. The Rule of Law has evolved at such great human costs

and too slowly over the centuries. Our American Revolution was fought because the colonists were not given the same legal rights as they had enjoyed in England; the French revolution was fought for liberte, egalite, fraternite - not for profits of private corporate interests. Our American civil war had many economic influences, but the end result was the end of slavery and equal rights BEFORE THE LAW. Fighting for women's right to vote, the civil rights marches, Kent State - it's all about the Rule of Law. Those causes are all far more noble and honorable, if you will, than the matter of whether a private investment company's salvage contract is honored - but you cannot selectively enforce the law.