If a country—or a private company—were to try opening a mine on the moon, it would be stepping onto uncertain legal ground. The Outer Space Treaty is silent on the question of extracting natural resources in space, and legal experts differ over what language mandating “free access” to all areas of space might mean for mining. 

The Explainer column links to and discusses various international treaties including the Outer Space Treaty, the Moon Treaty, the Antarctic Treaty, and the Law of the Sea with regard to ownership of the Arctic sea bed. Barely inhabitable but potentially or actually resource rich! Fun stuff.  

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Georgia is the third largest contributor of troops (2000) in Iraq after the U.S. and Britain. Georgia announced the immediate withdrawal of 1000 troops to face the fighting back home.

CNN’s Johnathan Mann interviewed Georgia’s President, Mikhail Saakashvili. The compelling video is here (Georgian president speaks). Composed and speaking fluent English, Saakashvili was frankly inspiring:

Q: What should the United States and the West do now?

A: Wake up. Wake up. What is happening now is not about Georgia, it’s about the basic values the West has, the basic values that the U.S. has always preached to us. We are a small country. We are attacked because we wanted to be free. We are attacked because we wanted to build genuine democracy. We are attacked because we built a non-corrupt, free enterprise society that is prospering and thriving. We are under attack because we never wanted to accept the old corrupt rules of the game and wanted to be close to the West and go into the Western fold where we believe we belong – into the European fold. If Americans and Europeans don’t stand up for their own values, for their own principles, then those principles and values will be in danger – today in Georgia, tomorrow elsewhere. And this will be a never ending story.

Q: What would you ask U.S. President George Bush to do right now for your people?

A: Look, we are in the same situation as Finland was in 1939 when Stalin’s brutal dictatorship attacked because it wanted a piece of Finnish territory. We are in the same situation Afghanistan was in 1979. It took the courage of Ronald Reagan to reverse the Soviet adventures in Afghanistan. Looks like the adventures are back, and peace is endangered again, and human rights and freedom are in grave danger again. President Bush always said Georgia is a beacon of liberty, a successful case of his whole freedom agenda. But we didn’t do it for him, we did it for our own people – we believe in democracy, we believe in freedom. You know, I went to University in America and I was always taught that America stands up for its freedoms, and America always helps freedom loving countries. This is the moment of truth for everybody, for President Bush, for the United States, the rest of the Western world and for all of us – are we are willing to stand up for our own ideals? Are we willing to fight for freedom? Are we willing to protect people who deserve to be protected? … This is really a crucial moment in history for Europe, and high time to wake up for everyone.

Seems to me that Russia is in clear violation of international law. The United States should fully support Georgia and not relent until every Russian soldier has withdrawn from Georgian soil. Russia is a serial bad actor on the world stage, and must not be allowed to bully its smaller neighbors. What do we stand for if not for freedom from aggressive tyranny for ourselves and our allies?

NPR has excellent coverage here, and expert commentary here.

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Earlier this month, the U.S. District Court for the Northern District of Georgia sided with (opinion) the family of Army Lt. Col. Dominic “Rocky” Baragona in their wrongful death claim against Kuwait Gulf Link Transport Company, a contractor providing vehicles and logistics services to the US Army and coalition forces. A head-on highway collision resulted in Baragona’s death as he was traveling to Kuwait to depart for the US.

District Judge William Duffy held that his court had jurisdiction over the foreign contractor, and that Iraqi law would govern the case after a report was prepared by a former Iraqi judge and a Saudi law professor retained by Plaintiffs. This report was uncontested due to the defendant never having appeared, and a default judgment was entered.

CNN legal analyst Jeffery Toobin said the court decision theoretically “does open the door to more lawsuits” against contractors, but that the Baragona family is a long way from ever seeing the money.

“It is always very hard to collect judgments against foreign companies and, when you overlay the chaos of Iraq, it makes it extremely difficult — if not impossible,” Toobin said.

Many comments to the CNN story express dissatisfaction that access to the “justice” and/or “compensation” accorded the Baragona family is not available to most victims of the war, be they Iraqi civilians or US personnel. While the technical accuracy of this sentiment is debatable, it is an understandable reaction.

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Odyssey Marine’s flagship, the Odyssey Explorer (OE), left its Gibraltar haven Tuesday morning October 16, only to be intercepted by Spanish Civil Guardia and Naval forces in a repeat of this summer’s seizing of Odyssey’s Ocean Alert.  Odyssey’s recovery of an estimated $500M of Spanish coins from the ocean floor has prompted Spain to claim ownership rights and interfere heavily with Odyssey operations. A related case is pending in Federal District Court in Tampa, Florida.

Unconfirmed reports suggested that OE had signaled its intention to proceed to the Spanish port of Algeciras for a voluntary inspection, but instead headed for international waters. This purported attempt at a ruse seems unlikely due to the certain presence of faster Spanish vessels. There are no coins on the ship, the same having been flown out of Gibraltar to a secure location in Florida months earlier.

Debate swirls over whether the OE was stopped in Spanish territorial waters or international waters (if in international waters, the seizure would be legally dubious). Charts showed the position of the seizure to be in recognized international waters, however Spain has long maintained a disputed claim over those waters – an element of longstanding territorial disputes with Gibraltar (a British overseas territory). Spain ceded control of Gibraltar to Britain in 1713, but today request the return of sovereignty. The UK immediately filed formal diplomatic objections.

Refusing to change course upon request, OE captain Sterling Vorus complied only upon the threat of deadly force. Earlier, an attempted boarding of the OE by Spanish security personnel was aborted when high swells hampered the operation. Numerous members of the media were on board the OE, and their accounts of events are now surfacing – their cameras and other equipment were confiscated.

Upon being forced to the port of Algerciras, captain Vorus refused to allow Spanish personnel on board, upon which refusal he was promptly arrested and provided the hospitality of a Spanish jail cell for the night (he was released the following day). The OE is being held indefinitely. The seizure follows months of its being virtually blockaded in Gibraltar.

More reports as events warrant.

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Odyssey Marine v. Spain update:

A report in El País newspaper has revealed that the 500,000 coins which the Odyssey Marine Exploration company found off the coast of the Algarve last April and May are Spanish coinage. …

The revelation was made by the company itself when if [sic] completed customs forms in Gibraltar on April 10 and May 16, the dates that they took their haul out of the colony and back to their base in Florida. …

The fact that the Odyssey company has admitted the coinage found is Spanish, does not, the company claims, mean it was found on a Spanish ship. On that point they insist that they still have not been able to establish the nationality of the vessel, a point key as to which nation or nations might later claim part of the treasure. (emphasis mine – the nationality of the ship is crucial to Spain’s claim to ownership) …

One theory is that the ship concerned is the ‘Nuestra Señora de la Mercedes’ which sunk in 1804 in the battle of Cape Santa María during an attack from British ships, although this has been dismissed by the Odyssey director Gerg Stemm.

He told the EFE news agency that his company invited the Spanish Ministry of Culture to take part in his expedition last year. ‘At first’, he said, ‘they did not show any interest, now they do. They have tried to force us to give information which we consider could put the site where we found the treasure in danger’.

Louis “Outraged Octogenarian” Montgomery update:

The 81-year-old man accused of hitting a Sheriff’s deputy over the head with a paint roller is suing the county and the deputy involved in the case.
Louis Montgomery has filed a claim for personal injuries he says he sustained as a result of excessive use of force. Montgomery also claims his arrest in March was illegal.

He says the arrest by Deputy Steven Williams was not made with a warrant or based on probable cause. The claim was filed with the County on Sept. 4. According to the Sheriff’s Department, Montgomery became violent with Deputy Williams after Williams asked Montgomery to stop painting a neighbor’s fence.*

Montgomery claims he didn’t hit the deputy with the paint roller, it fell on his head. The 81-year-old man faces charges of assault with a deadly weapon.

If you haven’t been keeping up, let me point out the crucial point that Montgomery was painting his own fence, NOT his neighbor’s as reported in the article. Montgomery had build a concrete block fence under a court order related to his neighbor’s irritation with Montgomery’s mini pig farm. To annoy his neighbor, Montgomery was perched upon his wall painting the side facing the neighbor in the tradition of tasty, but unlovely Neapolitan ice cream. It is debatable as to whether this otherwise legal activity represented a breach of the peace in which the responding deputy could lawfully interfere, or whether it was merely a “so sue me” nuisance properly dealt by filing suit.

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Another Odyssey ship, the Odyssey Explorer, remains blockaded in Gibraltar, unwilling to sail out into the teeth of the waiting Guardia Civil.

Though the 500,000 coins Odyssey recovered from the seabed have been long since placed in 2800 container-buckets and whisked away from Gibraltar by air to Odyssey’s Florida offices (to the chagrin of Spanish authorities), the Merchant Royal blog recently reported that a small collection of personal artifacts recovered missed the flight due to packaging problems and are being maintained in a Gibraltar warehouse:

Among them are a coal briquette, pieces of a sextant, ceramics and a number of personal items. All could potentially yield valuable information about the wrecks they came from.

The issue of the nationality of the sunken ship is huge, because if it is proved to be Spanish then Odyssey’s legal hurdles to ownership of the loot become much higher, as I discussed in case-parsing detail here.  Consequently, the artifacts are of intense interest to the investigating Spanish Judge (presumed author of the infamously elusive search warrant), who has appealed to Gibraltar authorities for cooperation (always an adventure in the contentious world of Gibraltar-Spain relations):

Separately a judge in La Linea is investigating whether Odyssey breached Spanish heritage laws by recovering items in Spanish waters, an allegation the company firmly denies. On Monday the judge made a formal request to the Gibraltar Government for legal assistance in the investigation. The judge wants authorities in Gibraltar to prevent Odyssey from removing any artefacts either from its ship or from the Rock.

On the New World side of the legal front, things have been relatively quiet. On August 6, Odyssey filed amended complaints in three admiralty arrest actions (for wrecks at different seafloor sites) pending in Federal District Court (Middle District of Florida). According to an Odyssey press release:

As part of the amended complaints, the Kingdom of Spain has been added as a defendant in all three cases, with Odyssey seeking compensation for losses sustained through Spain’s recent actions obstructing Odyssey’s ability to conduct operations. Odyssey is seeking not only relief in the form of a set-off of any award Spain may ultimately receive on any shipwreck, but also affirmative relief for damages caused by Spain’s interference with Odyssey’s rights to all three sites. In its pleadings Odyssey refers to the activities in Spain during the past months regarding the illegal boarding and seizure of Odyssey’s survey vessel, the Ocean Alert and the continued illegal effective blockade of the Company’s archaeological recovery vessel, the Odyssey Explorer.

That about brings us up to speed, whereupon, interest piqued again and eager for more, we collide with a wall of dead stop. More reports, live-blogged in real time, as they happen.

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The boarding had been prearranged by legal representatives of Spain and OM, who believed a search would be conducted on the high seas with the vessel then being released. The inherently tense situation, somewhat assuaged by the presumed agreement, escalated when Guardia Civil personnel threatened the Ocean Alert’s captain with the use of force if the ship was not immediately re-routed to the Spanish port of Algeciras.

Arriving in Algeciras on the 12th, the vessel was searched over a period of several days. Though now reportedly cleared to leave, various administrative snafus (which one begins to believe are intentional harassment on the part of Spain) has kept the ship in port to at least today – an exceedingly long detention. The OM press releases are essentially confirmed by a gibfocus.gi report.

In the above-linked article, gibfocus notes that the British Government, as well as OM, released formal statements that the boarding took place in international waters, rather than Spanish territorial waters as claimed by Spain. The seizing of a flagged vessel in international waters appears to be irregular, especially considering the absence of the mysterious court order. Spain having shown no aversion to bullying, this is nothing new.

In an earlier article, gibfocus implied inside information on the secret location of the new “Black Swan” wreck, which has yielded 500,000 period coins to OM submersibles and is the subject of the controversy:

Gibfocus also understands that the location of the treasure is off the coastline of El Faro, Portugal and not as first suggested off the coastline of Lands End in the UK. Whilst the treasure is believed to be from a Spanish colonial era vessel, the location of the shipwreck is believed to be within international waters off the Portuguese coastline. Official sources have this evening suggested that the vessel is a Spanish colonial vessel. Odyssey Marine Exploration has, however, continued to keep the location and name of the vessel a secret. Experts have nevertheless suggested that the vessel could be la Mercedes, or Nuestra Senora de Las Mercedes which sank off the Portuguese coastline in the early 1600’s. Tracking positions of the Odyssey vessels indicating that the company did operate in the same area the vessel was believed to have sank.

OM’s press releases included a report of its filing an affidavit with multiple governmental authorities in an effort to provide more transparency regarding its operations: 

Odyssey recently provided a 109-page legal affidavit to authorities in the Spanish Federal government, the Junta de Andalucia, the United Kingdom, Gibraltar, and the United States detailing Odyssey’s activities leading up to, and after, the announcement of the “Black Swan” discovery. This document (which covered nine years of communications and meetings between Odyssey, the Junta of Andalucia and the governments of the United States, the United Kingdom and Spain) was provided in order to address questions posed by the Spanish regarding Odyssey’s activities and to reassure all concerned governments and officials that Odyssey has always acted legally and with full transparency in relation to the “Black Swan” project and in all other shipwreck exploration activities.

Assuming the Ocean Alert is actually allowed to leave today and not held indefinitely, tensions should dissipate for the time being. I will comment on the latest developments as I become aware of them.

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PS- Today we received our first legitimate comment to the USLegal Blog! John Amrhein, Jr., a treasure hunter, maritime historian and author of the forthcoming The Hidden Galleon (New Maritima Press, 2007) added a comment to the Odyssey Marine: Sea Hunt v. Spain post. Thanks, John.

As a Spanish warship ingresses daily into sovereign Gibraltar waters and an unidentified warplane allegedly buzzes the Rock, a window for foreigners has opened upon internal Gibraltar politics.

Only July 9, Gibraltar’s opposition alliance (Gib. Socialist Labor Party and Gib. Liberal Party) issued a stern rebuke of Spain’s attitude and actions, accusing Spain of stalling Tripartite Forum (UK, Gib, Spain) talks over the Odyssey Marine issue. The government (Gib. Social Democrats) today rebuffed the opposition’s stance, claiming that Spain had not sought to place the issue on the Tripartite agenda and taking a generally softer tone. To someone with no prior knowledge of Gibraltar politics, it is immediately clear that the opposition makes its hay being “tough on Spain” while the government approach shades more toward conciliation. A quick check of wikipedia confirmed these inferences.

There are some rather humorous goings-on reported concerning the warrant supposedly issued for the seizure and search of the Odyssey Marine vessels:

Attempts to obtain the official documents have resulted in few details being revealed. Whilst Spanish officials continue to claim that an order from the courts and an investigations does exist, few details have as yet been made public, raising serious concerns over the true extend of the official order, and whether it actually exists.

It just keeps getting better, doesn’t it?

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[T]he Spanish authorities have provided further proof of their resolve to execute the La Linea court order against Odyssey Marine Exploration vessels by boarding the Swift Secure.

Information received by gibfocus yesterday confirmed that after departing Gibraltar the vessel [Swift Secure] had been stopped, boarded and searched off the coast of Tarifa, just passed the Strait of Gibraltar.

The boarding and search was the logical continuation of a Cádiz court’s issuance on June 8 of a warrant to detain and search two Odyssey vessels berthed in the British port of Gibraltar. Spanish naval vessels were subsequently deployed in the Spanish waters off Gibraltar effectively blockading the Odyssey ships in port (which they have refused to leave).

The standoff has been ongoing for about ten days. Updates to follow as new information emerges.

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What has the Treaty of Paris to do with Spain’s claim on the estimated $500 million in gold and silver coins recovered by Odyssey Marine Exploration’s tech-savvy treasure hunters?

Everything. (Dramatic, eh?)

In my initial comments on this story, I outlined the fight brewing between Spain and Odyssey Marine over rights to the loot. Since then, I’ve read Sea Hunt vs. Spain (4th Circuit, 2000) – a case that may weigh heavily upon the outcome of this battle. 

In Sea Hunt, a marine salvage / treasure hunting company (Sea Hunt, Inc.) located two Spanish naval vessels, La Galga (wrecked in 1750) and Juno (wrecked in 1802) off the coast of Virginia (in the territorial waters of the state). Virginia and Sea Hunt worked together, with Virginia claiming sovereignty over the wrecks per US law, and then authorizing Sea Hunt to salvage the wrecks. Sea Hunt filed an action in Federal District Court, whereupon Sea Hunt was granted exclusive rights as salvor of the wrecks. At this point the United States and Spain both intervened in the case attempting to establish Spanish sovereignty over the vessels, citing the 1902 Treaty of Friendship and General Relations between the United States and Spain.

The 1902 Treaty of Friendship states that sunken vessels of the Nation are not abandoned by their sovereigns unless by an express act of abandonment — meaning that the mere passage of time is insufficient to imply abandonment. This also happens to be the standard international law on wrecked vessels: only express acts (including the refusal to file a claim) can cause a shipwreck to be considered abandoned.  

Here’s where the Treaty of Paris (1763) comes in. The District Court had found that Juno had NOT been expressly abandoned, but that La Galga HAD been in the Treaty of Paris — and thus Sea Hunt had exclusive rights to La Galga. On appeal to the 4th Circuit, the Court examined the Treaty of Paris to check the District Court’s conclusion of abandonment, and found that the District Court had got it wrong:

As sovereign vessels of Spain, LA GALGA and JUNO are covered by the 1902 Treaty of Friendship and General Relations between the United States and Spain. The reciprocal immunities established by this treaty are essential to protecting United States shipwrecks and military gravesites. Under the terms of this treaty, Spanish vessels, like those belonging to the United States, may only be abandoned by express acts. Sea Hunt cannot show by clear and convincing evidence that the Kingdom of Spain has expressly abandoned these ships in either the 1763 Treaty or the 1819 Treaty of Amity, Settlement and Limits, which ended the War of 1812.

The 4th Circuit wrote that Sea Hunt, Inc., must show express abandonment by clear and convincing evidence, and that this burden was not remotely met when there was no mention of ships or shipwrecks in the relevant section of the 1763 Treaty.

I checked the Treaty of Paris myself, and I agree with the 4th Circuit. Here’s the relevant passage:

XX. In consequence of the restitution stipulated in the preceding article, his Catholick Majesty cedes and guaranties, in full right, to his Britannick Majesty, Florida, with Fort St. Augustin, and the Bay of Pensacola, as well as all that Spain possesses on the continent of North America, to the East or to the South East of the river Mississippi. And, in general, every thing that depends on the said countries and lands, with the sovereignty, property, possession, and all rights, acquired by treaties or otherwise, which the Catholick King and the Crown of Spain have had till now over the said countries, lands, places, and their inhabitants; so that the Catholick King cedes and makes over the whole to the said King and to the Crown of Great Britain, and that in the most ample manner and form. … It is moreover stipulated, that his Catholick Majesty shall have power to cause all the effects that may belong to him, to be brought away, whether it be artillery or other things.

There’s no way to wring an express abandonment of shipwrecks out of the treaty, especially considering the present-day governments of both Britain and Spain submitted formal Diplomatic Notes explaining their mutual understanding that shipwrecks were not intended to be covered (a fact the Court noted and gave near-conclusive weight). The 4th Circuit discusses this passage in detail, and finds nothing but support for the position that sovereignty in shipwrecks is retained.

In more general observations, the 4th Circuit notes:

Under admiralty law, where an owner comes forward to assert ownership in a shipwreck, abandonment must be shown by express acts. See Columbus-America Discovery Group v. Atlantic Mutual Ins. Co., 974 F.2d 450 (4th Cir. 1992). “[S]hould an owner appear in court and there be no evidence of an express abandonment,” title to the shipwreck remains with the owner. Id. at 461. This principle reflects the long standing admiralty rule that when “articles are lost at sea the title of the owner in them remains.”

The wreck currently being salvaged — codenamed “The Black Swan” — by Odyssey Marine has only been described as a 17th Century vessel (by the AP on CNN — I can find no such reference on the Odyssey website). If so, this predates the Treaty of Paris by 60-160 years. Some important legal questions arise:

1.) Was this a national vessel (such as a ship of the Spanish navy), or a private vessel? (Claiming to have not yet verified the ship’s identity, Odyssey has been deliberately obscure about this — which may have several implications (see below)).

2.) If it is a Spanish naval vessel, did Spain do anything to expressly abandon the vessel either before, or in the Treaty of Paris (1763), or thereafter? (If not, it seems likely Spain would retain the rights in a Spanish naval vessel and its cargo.)

3.) Does the likelihood that this wreck is in international waters rather than the territorial waters of any Nation impact the ownership interests in this case? (I haven’t seen anything to indicate that it matters, yet.)

Odyssey, in its press releases, seems to rely on “salvage fees” as a backup plan if actual ownership of the wreck doesn’t pan out due to legal challenges. But Sea Hunt throws a major monkey-wrench into Odyssey’s idea of “salvage fees.” The Court writes:

We affirm the district court’s denial of a salvage award to Sea Hunt. The district court found, “It is the right of the owner of any vessel to refuse unwanted salvage. Sea Hunt knew before bringing this action that the JUNO [already salvaged] was a Spanish ship and that Spain might make a claim of ownership and decline salvage. . . . Because Sea Hunt had prior knowledge of Spain’s ownership interests and had reason to expect Spain’s ownership claim and refusal to agree to salvage activity on JUNO, Sea Hunt can not be entitled to any salvage award.” (my emphasis)

That has to be a horrifying passage to Odyssey Marine. So what happens to the $500M of recovered coins? The above passage could explain why Odyssey has been very slow to ascertain the identity of the wrecked ship, focusing instead on the removal of the loot. Their legal game-plan could be that they won’t run afoul of the above quotation if they didn’t know who might have a claim on the ship – and therefore they’ll avoid the empty-handed fate of Sea Hunt, Inc., and instead receive a salvage award.

To wrap up, I’ll say that having read Sea Hunt vs. Spain I’m very skeptical of Odyssey’s confident pronouncements in press releases on its ability to retain the treasure (or at least the lion’s share) in the legal arena. But I’ll continue to read on this issue and report more as I learn and hear more — my background is light on admiralty law. Any comments are, of course, welcome.

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