The facts are straightforward enough:  2 years ago the fancy treasure-hunter, The Odyssey Explorer, struck gold (again) when it raised a fortune from the seabed near Gibraltar. It was estimated at some $US 500 million, and suspected to be from the Spanish ship, Nuestra Señora de las Mercedes, which sank in 1804 on its way to Spain from South America. A few days ago, a US federal judge awarded the gold to Spain. Meantime, Peru’s claim to the find was tossed out because it was still a colony when the Nuestra Señora was sunk by the British fleet.

Interesting.

The Law can be Pretty Complicated
law = complications

The international law applicable to wrecks can be complicated, but the irony, I think, is pretty clear: If a two-hundred-year-long immersion in the Atlantic cannot drown the legal personality of a ship load of gold, what will it take to extinguish the legal rights of PEOPLE?

One would have hoped for a smidgeon of embarassment on the face of Spain-as-Claimant; (an element of  ‘fine, we shouldn’t be doing this, but just look at that recession!’ ). It has, after all, trucked trillions of dollars worth of gold (and silver) from Peru (and Bolivia and Chile…) since the 1500s, paying principally in bullets. It would have looked really nice to have sued on behalf of a clutch of Bolivian/Peruvian charities… imagine the lost photo-ops for this benevolent second coming of Spain to South Ameri…

But no, it’s a real world out there. The face of the king of Spain may well be stamped on those doubloons, and this is not the time or place to evaluate the legality – or morality – of the  colonial project. Spain won her South American possessions the same way she lost them: in war. The reality of the deceased centuries was that nations owned only what their militaries could secure for them.

Yet, this is not 1804. This is 2009, and technology and courts can sometimes be as powerful as cannons. How?

  • With technology, Odyssey won the gold from the 200-year-old custody of the seabed.
  • With the courts, Spain won the gold from Odyssey. (Pretty neat, this: back in 1804, the gold on Nuestra Señora’s sister ships was ‘stolen’ by the British fleet. No lawsuits were filed.)

The great thing about technology and courts (fume all you like, you losers): it’s a pretty bloodless process. Odyssey duly goes on appeal, and there are millions of dollars riding on the next roll of the judicial die. Future treasure-hunters now know to reach understandings with potential wreck-owners before ‘finding’ treasures hereafter.

There are probably a million folk whose involuntary Atlantic graves are contemporaneous with Nuestra Señora’s gold, whose skeletons will not be raised by treasure hunters, whose cases will not be raised in courtrooms. But the attitude of the American court to the survival of ancient causes of action should be duly noted.  and the woolly, global Reparations for Slave Trade movements should resolve into discrete campaigns for concrete, traceable assets.

In the ensuing log-jams in the courts, a global settlement may well acquire some new allure, even for Defendants.

Chuma

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