Returning 200 years ago from the New World to a Europe engulfed by the Napoleonic wars, Spanish Rear Adm. Don José Bustamente led a fleet of four frigates to a tragic homecoming. South of Portugal's Cape St. Mary, British warships spotted the Spaniards in October 1804 and ordered them to change course and sail for England. Bustamente refused, a battle erupted, and Spain's 36-gun Nuestra Señora de las Mercedes exploded and sank, "breaking like an egg, dumping her yolk into the deep," according to a Spanish account.
The ship took with it more than a million silver dollars freshly minted in Spain's American colonies, documents of the time suggest. The lost booty became the stuff of legend, one of the world's great sunken treasures.
This spring, modern technology caught up with sea-hunting lore when a U.S.-based salvage company, Odyssey Marine Explorations, announced that it had found a 17-ton hoard of silver and gold artifacts, including about 500,000 coins, at the bottom of the Atlantic Ocean. Estimated value: $500 million.
But Odyssey, citing a need to keep looters at bay, isn't saying where it found the wreck, except that it was in international waters in the Atlantic, and claims to be unsure what ship it has found. It has given the wreck the code name Black Swan. But people familiar with the search say the evidence points to the Nuestra Señora de las Mercedes.
Odyssey's secrecy has touched off a three-month international legal battle. Spanish officials, convinced that the loot could be Spain's, filed suit in the United States to force disclosure of the wreck's name and location, block future recovery efforts and claim what has already been hauled up.
The Spanish coast guard has effectively barricaded Odyssey's main salvage vessel, the 251-foot Odyssey Explorer, in the port of Britain's overseas territory of Gibraltar, by threatening to seize it if it ventures out.
The fight renews a dispute between archaeologists and commercial salvors over rights to historic wrecks, a quarrel that is growing as new search technology and submersible robots bring to light more graves of ancient ships. It has raised old tensions between Spain on one side and Gibraltar and its mother country, Britain, on the other. And it has pitted a small, Tampa-based U.S. company, which essentially argues that finders are keepers, against Spain, which says it has a right to protect its national heritage.
The next battle over the ship will be fought not on the high seas but under arcane maritime laws in a federal courtroom in Tampa, the city to which Odyssey quietly flew the salvaged treasure before announcing its recovery in May.
In interviews in Gibraltar, Odyssey Explorer crew members described their methodical search for the wreck. First, the company's main survey ship, Ocean Alert, spent weeks at sea towing a sonar device back and forth, at 5 mph, 24 hours a day, producing picture-quality images of the ocean bottom – a tedious process known as "mowing the lawn."
Company experts on the Odyssey read the digital printouts, identified anomalies on the ocean floor, then returned in the Ocean Explorer with a deep-sea robot called Zeus. Controlled from the surface, Zeus deploys an array of brilliant strobe lights and cameras as it delicately pokes through debris on the bottom. Its operators say the 8.5-ton robot can pick up an egg without breaking it.
Greg Stemm, co-founder of Odyssey, said the company conducts more thorough, archaeologically sensitive excavations of deep-sea sites than any organization in the world. But at the same time, he said, they are in business to find treasure, and the Black Swan was no fluke.
"Shipwrecks are a resource like any other resource, and every other resource – scientific, cultural or otherwise, whether it's coins, whether it's stamps, whether it's antiques – it's all owned, bought, sold and traded all the time," Stemm said.
Many archaeologists, citing the United Nations' 2001 convention on protecting underwater heritage, say that shipwreck sites should not be raided for profit. "In this case, you're looking at something which is a bottom-line business, and the guy is seeking to find things with pressure from investors and their own bottom line, so what protocols work for them certainly are not the same for us," said James Delgado, director of the Institute of Nautical Archaeology at Texas A&M University. "What's fascinating is seeing Greg Stemm trying to straddle the two worlds."
Given the value of the Black Swan site, Stemm said, "why in the world should we be disclosing where it is, when it's practically impossible to protect it?" Meanwhile, he said, Odyssey wants to return to the wreck to continue analyzing its identity, because for every ship it could be, "there is something that contradicts the evidence."
Spain's attorney in the case, James A. Goold of the Washington firm of Covington & Burling, called that "intentional ignorance."
"Everything points to Odyssey having known exactly what ship they were looking for and having then decided to claim it was unidentified," he said in a telephone interview.
"The law is quite clear that an owner of a ship remains the owner after it sinks, and a sovereign nation has a right to protect its cultural heritage," Goold said. "Spain has cultural heritage laws, and Spain has a program of underwater archaeology, and there are projects Spain undertakes by itself or with archaeological institutes for the public benefit, but not so someone can scoop up gold coins and sell them on eBay."
Odyssey's announcement in May that it had found a huge treasure stunned the Spanish government, which had just completed an agreement allowing the firm to begin work on another wreck found off Gibraltar, believed to be the 80-gun HMS Sussex. The Sussex sank in a severe storm in 1694 in waters that Britain and Gibraltar claim are international but that Spain claims as its own.
Spanish officials initially took the announcement to mean that Odyssey had excavated the Sussex in violation of the agreement, which they immediately canceled. Odyssey countered with a second announcement that the Black Swan was not the Sussex and that it lay in international waters.
"They say it's not the Sussex, but who knows?" said a spokesman for the Spanish Foreign Ministry who commented on condition of anonymity, citing ministry rules. "The information they have given regarding the so-called treasure is not complete, and it's very difficult to be certain where it comes from – which oceans, what water, international or not, and from which ship," he said. People familiar with the case say that Spain has since concluded that the wreck is the Spanish galleon.
Spanish newspapers accused Gibraltar and Britain of complicity, saying they allowed the U.S. company to spirit away Spanish treasures through the tiny British territory at the entrance to the Mediterranean. Odyssey and the governments of Britain and Gibraltar denied that allegation, saying that Odyssey flew the haul out of the main airport in Gibraltar legally, complying with all customs requirements.
Within days, a Spanish judge launched an investigation and issued search and arrest warrants against Odyssey's two main ships, the recovery vessel Odyssey Explorer and the survey ship Ocean Alert.
On July 12, as the Ocean Alert tried to leave Gibraltar, it was stopped and forcibly boarded by Spanish maritime police just outside the three-mile limit of British-declared waters but inside the 12-mile zone that Spain declares as its territorial waters and that Britain asserts is international. Police took the boat into the nearby Spanish port of Algeciras, where it was searched and stripped of computer hard drives, maps and other items before being released a week later.
The British government sent Spain a strong note of protest, a spokeswoman at the British Embassy in Madrid said. But at the same time, she said, "we pushed Odyssey to be as transparent as possible, as quickly as possible."
The Odyssey Explorer remains docked here, at a cost of more than $20,000 a day, company officials said. "We have nothing to hide," said Aladar Nesser, a former U.S. Navy officer who is now Odyssey's director for international business development. "But we're afraid they'll confiscate everything on it."
Archaeologists, historians and treasure buffs also joined in the hunt for the Black Swan, which took them to the Federal Admiralty Court in Tampa, where filings by Odyssey hint that the firm has found three of the most significant shipwrecks ever.
The papers, in which Odyssey asks to be named "custodian" of the wrecks, do not name any of the ships and give only vague descriptions of their graves, but undersea archaeologists and other experts say there is little doubt what they refer to: the Nuestra Señora de las Mercedes; the Merchant Royal, a 36-gun British navy vessel that sank in 1641 in bad weather off southwestern England with a fortune in silver, gold and jewels; and the SS Ancona, an Italian passenger liner torpedoed by a German U-boat in 1915 off the southeastern coast of Sardinia, taking 12 barrels of gold and a shipment of silver bars with it to the bottom.
Spain has filed to compel Odyssey to disclose the three sites, contending that some of the ships might have been Spanish naval vessels; if they were, they would be covered by sovereign immunity and would still belong to Spain even if lost in international waters. In another legal scenario, the treasures they carried might have belonged to the Spanish government, which could now file claims for them.
Either way, the judge in the case could still award Odyssey a reward for salvaging the vessels, ranging from a pittance to the entire wreck, Texas A&M's Delgado said.
If the court rules that one of the wrecks is the Nuestra Señora de las Mercedes, legal experts say, Spain will certainly claim that it has sovereign immunity and that it lost but never abandoned the ship, a key criterion.
Much of what was recovered was in the form of large, rocklike collections of encrusted coins, weighing an average of 60 pounds apiece and discovered in a "debris field" rather than in a single area that might be the remains of a ship, according to Odyssey's Nesser. That suggests that people aboard the ship might have thrown the cargo overboard to try to prevent a sinking, he said.
Underwater and treasure Web sites, which are brimming with online chats about the Black Swan, have suggested that the absence of a ship indicates that the booty was from the Spanish galleon, which by some accounts disintegrated in a tremendous explosion.
Citing comments by Stemm, some online participants have speculated that the company is preparing to argue that the loot was, in fact, abandoned by people throwing it overboard.
Odyssey remains mum on the location. "We are very, very concerned about protecting that site, and it is irresponsible for people to try to figure out where it is," Stemm said. He compared giving hints about it to dropping clues about the location of someone in a witness protection program.
"It's in the Atlantic," he said. "I'm not going to get into guessing games."
© 2007 The Washington Post