INTERNATIONAL LAW AND THE UNCERTAIN FATE OF MILITARY SUNKEN VESSELS

Abstract

On 5 October 1804, the Spanish warship Nuestra Senora de las Mercedes had almost completed its voyage from Peru to Spain, when it was attacked by the British fleet. In the ensuing battle of Cape St. Mary almost 250 Spanish sailors died. Historians deem the sinking of the Mercedes to be a pivotal event in European history. Mentioning the “sad loss of the frigate Mercedes”, King Carlos IV of Spain declared war against Great Britain and entered the Napoleonic wars on the side of France.The fateful sinking of the Mercedes and its possible recovery by a commercial salvor, Odyssey Marine Exploration Inc., has been the focus of a pending legal dispute. After finding the wreck, the salvor claimed ownership of it, under the law of finds or a salvage award under salvage law, which would entitle it to sell the recovered artefacts and receive a part of the revenues as compensation for the efforts made in finding and recovering the shipwreck. However, Spain intervened in the proceedings claiming that the Black Swan – as the salvor had code-named the shipwreck – was the Mercedes, and that, the Mercedes being a warship of the Royal Navy of Spain, it was subject to immunity from Odyssey’s claims and not subject to salvage against the wishes of Spain. In parallel, Peru reclaimed the treasure, which it deemed part of its cultural patrimony, while the Bolivian Government expressed its interest in identifying the origin of the recovered treasure. Finally, twenty-five descendants of those aboard the Mercedes filed claims against the wreck. On 22 December 2009, the District Judge dismissed Odyssey and Peru’s complaint for lack of subject matter jurisdiction and ordered Odyssey to return the artefacts to Spain. While the principles of international law upheld by the judge are not new, one may wonder whether customary norms of international law concerning the protection of sunken warships in the high seas are gradually crystallizing.This study shall proceed as follows. First, it will scrutinize the Black Swan case, by focussing on the identification of the vessel and issues of jurisdiction. Second, it shall explore the international legal framework which governs the recovery of sunken warships at the international law level. Third, issues of sovereign immunity and ownership will be addressed. Finally, some conclusions are put forward.