California Art Law, Maritime Shipwreck Treasure Law and International Antiquities Law - It is Not a Case of Finders, Keepers
By The Law Offices of R. Sebastian Gibson
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The recent flurry of shipwrecks found with gold and other treasures and the continuous flow of stolen art into the U.S. and London is an area of law that is full of competing legal issues which complicate determinations of rightful ownership of stolen art, antiquities and treasure that is found on shipwrecks.
When it comes to lost or stolen art, buried or sunken treasure and antiquities, it’s not as simple as you find it and you can keep it. Art, maritime and the laws of states and international law have something to say about it.
Maritime Shipwreck Treasure
Recently, a number of prized shipwrecks have been found, one as recently as February 2009 when a U.S. salvage company, Odyssey Marine Exploration found a prized British warship believed to be the HMS Victory, lost in 1744, which just may hold four tons of gold. The HMS Victory discovery may solve one of the most intriguing naval mysteries in history. Why did this ship with one of the most famous admirals of his time, disappear with a crew of 1,100 men with one of the largest shipments of gold and silver, including four tons of gold coins, and why has it eluded treasure hunters for so long?
Believed sunk near the Channel Islands by a fierce storm that separated the Victory from other ships that broke through a French blockade at Lisbon and were returning home, the Victory (a later version which would be commanded by Admiral Nelson) had the sons of some of Britain’s most influential families on board when it sunk with perhaps the largest collection of bronze cannon as well.
In a less important find of another English shipwreck, Odyssey negotiated a deal whereby it received 80 percent of the first $50 million salvaged, and then a sliding scale up to $500 million, after which the profits were split 50-50. Since that time, however, the British government adopted a set of UNESCO guidelines that will complicate any hope of a similar arrangement.
Two years earlier, the same company, Odyssey, located the mystery ship, the Black Swan” believed to be a Spanish galleon, the Nuestra Senora de las Mercedes y las Animas, that sank off the coast of Portugal, with seventeen tons of gold and silver coins.
The Spanish government has sued Odyssey in a Florida federal court on the basis that it never abandoned the shipwreck. One could say, they simply lost it for a few hundred years. The British government is believed to be negotiating with Odyssey about a collaboration to salvage the warship.
Maritime Shipwreck Treasure Law
What’s important in sunken treasure cases is where the treasure is found, whether the ship was owned by a government or a private entity, and whether there has been any dishonest conduct by the treasure hunters.
Most countries and their maritime lawyers claim anything to be within 12 nautical miles from their coast as their territorial waters. Additionally, if the ship was owned by the state or government, Law of the Sea Conventions come into play, which again allow the state or foreign country to determine what compensation the treasure hunter is entitled to. Finally, if the treasure hunter or salvage company has been guilty of any fraud or dishonest conduct, they can be deprived of any or all of any payment due them. Entering a foreign state’s territorial waters to look for a sunken ship counts as such misconduct.
International Maritime Law and The Law of the Sea
Under international maritime law and the law of the sea, if an owner abandons a vessel, it can be claimed by the finder. When a vessel has not been abandoned, it can still be salvaged by the finder and is usually compensated by the sovereign state claiming ownership. The Abandoned Shipwreck Act of 1987 encourages cooperation between sovereign governments and states and private entities.
The rule of “finders, keepers” applies only where the previous owner of a ship is found to have abandoned its property. Under various state laws, treaties and conventions, however, the positions taken by most governments, including the U.S., is that the state only abandons its sovereignty over, and title to, sunken U.S. warships by affirmative act. Mere passage of time or lack of positive assertions of right are insufficient to establish such abandonment. Thus, France’s claim with respect to the Griffin (or Griffon) that it never abandoned its interests in the ship.
Sorting out these competing claims can take awhile. In 2001, the Great Lakes Exploration LLC found a 17th Century ship, the Griffin, in northern Lake Michigan, near Wisconsin. One might think that Michigan or Wisconsin would have good claim to the ship. But just in January 2009, France filed papers with the court hearing the case that claims the ship expedition was undertaken on behalf of the French Crown and was not a private enterprise.
The Richest Shipwreck Ever Found
And then, just when you thought the scale of these discoveries could not be topped, they have been, at least monetarily, with the discovery of a British merchant ship, sunk by a Nazi submarine, that was transporting just goods from a European port, to the U.S. with repayment to the U.S. Treasury for the Lend-Lease Program that gave support to the Allied war effort. And what was this ship, code named the Blue Baron carrying? Just the world’s richest shipwreck cargo ever. The ship is thought to have been carrying a $3.7 billion cargo of gold, platinum and diamonds.
Believed to have been found about 40 miles off the coast of Guyana by Sub Sea Research, a U.S.-based marine research and recovery firm, the shipwreck will be the richest find ever. It was reportedly carrying at least ten tons of gold bullion, 70 tons of platinum, one and a half tons of industrial diamonds and 16 million carats of gem quality diamonds.
So far, no counter claims have been filed in the federal admiralty court case relating to the find, but it is likely that a number of countries may make claims to possessions on board that originated in those countries, including Russia which, like Britain, shipped large quantities of precious goods to the U.S. in payment for the war effort by the U.S. The question for historians who may have some influence in this case, is whether the Soviet Union paid subsequently for the Lend-Lease war effort after the ship was sunk.
Stolen Art and Antiquities Law
The law with respect to stolen art as opposed to lost shipwrecks is quite different, but no less complicated. Some countries view the movement of stolen works of art as the smuggling out of its country of a “national treasure,” even if it was previously, privately owned. Other countries view the contents of tombs and other relics to be the property of the state and their taking as “theft.” Another view of situations in which a work of art is previously owned by one person and then appears in the collection of another, is viewed as a further variation of theft. In this last variation, most legal systems provide protection to the bona fide purchaser, unless the property is stolen.
Unfortunately, the laundering of stolen works of art is facilitated by the lack of consistency of state laws and international law, statutes of limitations, the bona fide purchaser defense and the burden of proof on the person claiming that the art work was stolen.
Under a common law rule in Anglo-American law, a person cannot give what he or she does not have. Thus, a thief cannot convey good title to a stolen work of art, even where there have been several subsequent purchases by bona fide and unsuspecting persons acting in good faith. However, the vast majority of western countries with civil law systems accord protection to the purchaser in good faith of stolen art. While there are international treaties and conventions which are gaining supporters, for the most part, it has been said that international law on the illegal sale of art works and cultural treasures is not retroactive.
The FBI now maintains a National Stolen Art File (NSAF) which is a computerized index of stolen art and cultural property reported to the FBI by law enforcement agencies throughout the United States and the world. The primary goal of the NSAF is to serve as a tool to assist investigators in art and cultural artifact theft cases and to function as an analytical database providing law enforcement officials with information concerning art theft.
It has been reported that the trade in illegal art and antiquities in the U.S. is exceeded only by the trade of guns and drugs. It is believed that most of the stolen art in the world (over 100,000 objects since the 1980s) comes to London or to the U.S. with much of it bought secretly by persons for their private collections, for a fraction of their market value.
ABOUT THE AUTHOR: R. Sebastian Gibson
Sebastian Gibson graduated cum laude at UCLA in 1972 and received law degrees in the U.S. and the U.K., graduating with an LL.B. magna cum laude from University College, Cardiff in Wales and a J.D. from the University of San Diego School of Law.
Mr. Gibson began his legal career in San Diego before practicing for years in London, England. Today, he has offices in Rancho Mirage and Palm Desert in the Palm Springs area, Newport Beach in Orange County, and the firm’s Of Counsel office is in Carlsbad, San Diego.
Sebastian Gibson is a California Art, Maritime Lawyer and International Antiquities Attorney representing clients in a wide variety of legal matters including art, maritime and international business, real estate, and personal injury matters throughout Southern California from San Diego, Orange County, Irvine, Anaheim, Huntington Beach, Santa Ana, Santa Monica, Ontario, Laguna Beach, Los Angeles, Santa Barbara, Palm Springs, Palm Desert, and Newport Beach to Carlsbad.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.