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The Juno
On October 1, 1802, the Juno, a 34 gun frigate of the Spanish
Navy under the command of Don Juan Ignacio Bustillo, departed San
Juan, Puerto Rico, for Cádiz, Spain, along with another ship called
the Anfitrite. She was carrying the Third Battalion of the
African Regiment and other passengers and their valuables estimated
at $100,000. The ships reached the vicinity of Bermuda with little
difficulty but here they encountered continuous squalls and heavy
seas. The two ships became separated. Juno continued north in
search of better weather.
On the night of the 22nd, there was a stiff wind from the northeast
and large waves. The topsail split and the ship remained unable to
continue sailing for half an hour until the mizzen mast was cut. The
wind was so furious that it wrenched both the main mast and the fore
top sail, throwing the main topmast against the handrail. The
caulker came up from the hold and announced that there was six feet
of water in the hold and increasing. All four pumps were put into
action and the sailors and soldiers took turns pumping while the
others rested.
On October 24, at
latitude 37°N, longitude 67°W6, 450 miles southeast from
Assateague Island, they fell in with the American schooner
Favorite, Captain Pourland, from Madeira to Boston. Captain
Bustillo requested Captain Pourland to stay by him and assist in
getting the frigate to the nearest American land. At this time, he
put on board the Favorite his
second in command, Don Francisco Clemente y Miro. Also transferred
was the lieutenant of the African regiment, Don Jose Maria Zorilla;
the cadet Don Antonio Malagon, and four grenadiers with provisions
that might be needed in an emergency. A plan of signals was decided
upon for use day and night to indicate if the water in the ship was
rising or diminishing. Plans were also made if it was deemed
necessary to abandon ship. Captain Bustillo believed he could save
his ship and make it to a port in the United States. He encouraged
his men and sailed on with a fresh southwesterly wind, working the
pumps without a break.
On the 25th of October, the weather cleared and the captain was able
to investigate the origin of the leak and attempted to stem the rate
of increase. They found that that the problem was in the boatswain's
storeroom/quarters. Captain Bustillo ordered all of the artillery
from the mainmast to the bow and her third and fourth anchors to be
thrown overboard. The storerooms were cleared and supplies moved
back to the stern. They tried everything to stop the leak in the
boatswain's area but none proved to be successful. They tried
caulking, sealing off the area from the inside and applying sails
from the outside. The water level continued to rise inside the ship.
The Favorite
continued on with the Juno.
On the 27th, the Favorite was informed that the
Juno had lost her rudder during the night and with the rising
water in the ship, the pumps were no longer able to overcome the
leaks. The men bailed water by hand in the bow and the stern, and a
steering oar was set up to replace the rudder. So they continued and
at midday, the ship was at latitude 38° N,
longitude 69° 56’ W7, 280 miles east of the coast of
Assateague Island, and 250 miles southeast of Boston.
At ten o'clock that evening, the wind changed to the northwest and
there was such a violent squall that the gaff peak parted, leaving
the ship under bare poles. Juno managed to avoid the sea's
blows for a distance of 10 to 11 miles pushed by the northwest wind.
The frigate lost her mainmast, the fore topsail mast, and the yard
which had been used to replace the tiller. The ship sent signals to
the Favorite for help as she was no longer able to hold out
but the schooner was only able to come to leeward as close as a
hundred yards. This was close enough to hear the anguished cries for
help and watch the ship roll as if nearly full of water. Overcome by
the wind and convinced that she would capsize if she attempted to
come around, the Favorite remained incapable of maneuvering
for the rest of the night.
At 9 am, Juno’s
mainmast went over the side and her foremast fell alternatively from
side to side. Every effort was made to afford her assistance but in
vain. A fog occasioned Captain Pourland to lose sight of her. In
half an hour it cleared away but the ship was no more to be seen.
Convinced that Juno was lost with 413 souls, the Favorite
continued her route inland and dropped anchor in the port of Boston
on November 1. Here, Captain Pourland gave his account to the Boston
Columbian Centinal and Lt. Clemente travelled to Washington,
DC where he gave his account to Spanish officials at the embassy
there on November 13th. He was weak from his ordeal and
complained of the poor food provided him on the schooner and the
necessity to drink strong liquor to overcome the cold. All accounts
of Juno’s loss are based on the testimony of these two
people.
The alleged “discovery” of the Juno
The discovery of the Juno was claimed by two treasure hunting
firms, Quicksilver International, in 1988, and Sea Hunt Inc., in
1998, in two different locations 44 miles apart. Both locations were
hundreds of miles from where the Juno disappeared October 28,
1802. The record reveals that both discoveries were based on wishful
thinking rather than archaeological and historical data.
Quicksilver International8
In 1987, a fishing trawler dragged up a bronze bell that appeared to
be Spanish and rudder post with two bronze gudgeons 40 miles off the
coast of Assateague Island. Quicksilver International in Norfolk,
Virginia was contacted and they began a systematic search of the
area with side scan sonar. In 1988, Quicksilver filed an in rem
admiralty action in the Federal District Court in Norfolk to an
unidentified shipwreck they had located in that area.Quicksilver
began raising money through stock sales but did little with their
shipwreck discovery. They later told the court and the newspapers
that they believed they had found the Juno. The company
floundered until another company called Sea Hunt, Inc. claimed that
they had found the Juno just off the south end of Assateague
Island and that their research said that she was carrying 700,0009
pieces of eight when she sank. Quicksilver was reenergized with that
information. A diver was then lost10 in their bid to
retrieve objects from their still unidentified hulk. Quicksilver
faded into oblivion, but only after they made appearances in the Sea
Hunt case.
Sea Hunt, Inc.
In 1997, a treasure hunter named
Ben Benson and his company, Sea Hunt, Inc, obtained permits from the
Commonwealth of Virginia to explore for and recover items from
shipwrecks in two six square mile areas off Assateague Island. The
permits did not name the vessels La Galga and Juno but
Benson openly told the newspapers that these were the ships he
sought.
Benson was convinced he could locate the wrecks because he believed
they had already been found by others. He was led to the site of an
unidentified wreck near the present Maryland-Virginia border by
another treasure hunter and was told it was La Galga.11
This site was already known to others including the Commonwealth of
Virginia since 1980.12
In 1989, a fisherman dragged up an anchor off the south end of
Assateague which had a pewter plate attached to it with the letter
“J” engraved on it. Benson learned of this and that some Spanish
coins had been found on the beach opposite this site predating 1802.
He did not know that Spanish coins were common currency in the U.S.
until 1857.13 He did not know about the number of wrecks
located in this area, one of which was also called the Juno
that wrecked in 1817.14 He did know about the previous
allegation of discovery by Quicksilver and the published accounts of
Juno’s loss putting her most likely hundreds of miles away.
On March 11, 1998, Sea Hunt, Inc. filed claims to two unidentified
shipwrecks in the federal court in Norfolk, Virginia. They gave the
general location as six square miles specified by the same
coordinates that was used in their permit with Virginia. On the day
of filing, their attorney said that the three artifacts brought into
court may or may not be from La Galga or Juno, only
that their client believed them to be.15 No evidence was
offered as foundation for that belief that those artifacts had to
have come from a Spanish ship.
On May 13, 1998, the Commonwealth of Virginia filed its own verified
claim to the two wrecks. Their basis for the claim was that all
shipwrecks located in the three mile contiguous zone along
Virginia’s coast were property of the Commonwealth by virtue of the
Abandoned Shipwreck Act of 1987.16 In their claim and in
all subsequent representations, Virginia always maintained that the
vessels were “unidentified.” Virginia offered nothing to the court
on the historical background of the ships or any reason to believe
that they were in fact located within the coordinates specified by
Sea Hunt or anywhere in or on Virginia’s submerged land. Their claim
was predicated on the accuracy of Sea Hunt’s claim.
On May 18, 1998, Spain entered the litigation represented by the U.
S. Justice Department.17
In July, Virginia’s Governor, James S. Gilmore, III, wrote to the
Spanish ambassador in Washington advising them that their interest
in the unidentified wrecks “seems premature” since there were no
artifacts recovered linking the unidentified wreckage to Juno
or La Galga.18
Spain was told by the court to get their own lawyer and that the
U.S. Justice Department could not represent them. The U.S. was
granted amicus status and remained before the court. Spain
finally submitted its verified claim on December 22, 1998.19
This claim stated that to the best of Spain’s knowledge,
information, and belief, that La Galga and Juno were
the subject of the in rem litigation and were located within
the coordinates offered by Sea Hunt.
The Court advised counsel for Sea Hunt and Quicksilver that both
were making claims to the Juno. The Court was assured by each
that they were two separate and distinct wrecks. Quicksilver and Sea
Hunt readily admitted that one of them might be right, or they both
could be wrong.20 Counsel for Spain indicated that they
believed that it was Sea Hunt that had found the Juno.21
The basis for this conclusion was that pictures of the anchor on the
Quicksilver site revealed a chain attached to it. Spain said that
the unidentified wreck post dated the Juno. They offered no
affirmative information on why the Sea Hunt wreck had to be the
Juno. In later testimony, Spain would allege that Sea Hunt had
not found the Juno. Not offered in court but printed in the
Virginian-Pilot was Quicksilver’s statement about the anchor
that had been found off of the south end of Assateague in 1989:
“The anchor that has received much attention has two major flaws:
First, the wooden crossbar is charred and partially missing due to
burning. The Juno had no fire on board. Captain Leon Rose stated
that the anchor was in its present condition when he dredged it up.
Second, the anchor size does not match the ship's specifications
that we found in the Naval Museum in Madrid.
Ben Benson has located a wreck close to shore, of which there are
many. However, the research is very clear. What he found is not the
Juno.”22
And so the confusion began. Oral testimony and attorney arguments
demonstrate that point:
Court transcript September 15, 199823
Page 63. The Court said: "I'm not sure that there is anything in
this file that would indicate that everybody agrees that the two
ships that the plaintiffs were given salvage permits for the two
vessels Juno and La Galga...” And in response to the
U. S. Justice Department the Court said at p. 64 , “All you have to
do is come into court and say Judge, we are not sure that these are
the right ships. How about letting us put a diver down there to find
out, and certainly I would agree that you could do that."
The response of the U.S. Justice Department at p. 64: "That's an
option that has never crossed our minds Your Honor."
P. 65. U. S. Justice Department: “My first answer to you is if Sea
Hunt with its resources has not been able to identify them, I don’t
think sending down one U.S. Diver is going to either.”
The Court at p. 65: "But Sea Hunt has never guaranteed that these
are the two ships. You are, in effect, trying to guarantee that they
are the two ships, and I'm not satisfied that the Court is going to
give Spain the yea or nay on salvaging these vessels when we don't
really know what they are.”
P 67. The Court: “... the burden is upon the United States I would
think to establish that we are really talking about Spanish
warships..."
P. 77. Frederick Fisher for the Commonwealth of Virginia: “The claim
is premature because they have not identified what vessels are
there. The permits are not limited to the Spanish vessels, but cover
that particular area.”
P. 159. Ben Benson, president of Sea Hunt, Inc.: “…another guy named
John Armahein (sic) (this author) claimed to have found it also in
the ‘80’s in a different location. So I tried to contact each one of
those people and to try to talk with them and see what kind of data
they had.”
After having been being led to the site by Alpha Quest, Benson said
he located the wreck after 400 hours of survey work with a
magnetometer. This author was not contacted by Benson but Benson did
have this author’s research report on the location named in 1983.
Benson ignored the findings about the Maryland-Virginia boundary
line documented by the federal government and the wreck’s location
documented in the report.
December 22, 1998 Spain filed its verified claim24
They merely referred to the fact that La Galga and the
Juno were “asserted to be the subject of this in rem
litigation.” The strength of their claim was no greater than the
unproven assertions made by Sea Hunt.
April 1, 1999, Transcript of the Proceedings25
Page 8.
Anthony Troy for Sea Hunt: "We do not at this time have sufficient
evidence to declare that we have found the JUNO. What artifacts we
have found are not inconsistent with the JUNO, but we have nothing
that suggests that we can claim the JUNO."
Page 66. Jim Goold for Spain: "Embeddedness is only a doctrine that
addresses where a property is abandoned, whether it belongs to the
finder or the landowner. Our position, of course is that these ships
have not been abandoned, and it also appears to be the case that
nobody knows where the Juno is and whether it’s embedded or
not, Your Honor.”
P. 83. David Bederman for Sea Hunt: “All parties agree that Juno
and La Galga are located within three miles of shore of the
Commonwealth of Virginia in very shallow water.”26
Page 99. The court: “Mr. Cook of Alpha, whatever it was, has claimed
or made the statement that he doesn’t think that the vessel that you
and Sea Hunt are referring to is actually the JUNO, and the
Quicksilver people, I thought, today said the same thing. Can I
assume from both parties here to this case that you all are
satisfied that I should rule upon this matter on the agreement of
counsel that the vessel is the JUNO?”
P. 100. Jim Goold for Spain: “Yes. We believe that the court can
rule, affirm Spain’s ownership of the JUNO regardless of which place
it happens to be.”26
Page 107. Jim Goold for Spain; “And at the same time Sea Hunt, with
all of the modern technology that’s available, comes before the
court and tells you they don’t know if they’ve found it or not
either”
The Decision
On April 27, 1999, the district court awarded La Galga to the
Commonwealth of Virginia thus giving salvage authority to Sea hunt
by virtue of its permits with Virginia, and the Juno was
awarded to Spain. The court said, preliminary to its ruling and
affirming its jurisdiction and authority to render any decision at
all that: “This matter is a dispute over the status of two
shipwrecked vessels believed to be the remains of the Spanish
vessels JUNO and LA GALGA, which were sunk in 1802 and 1750,
respectively. Plaintiff Sea Hunt, Inc (“Sea Hunt”), a maritime
salvage company based in the Eastern Shore of Virginia, has located
the shipwrecked vessels near the coast of Assateague Island …” As
for La Galga, “LA GALGA then lay undisturbed for almost 250
years, until the current salvage attempts by Sea Hunt.” And for the
Juno, “…the location of the wreck was not discovered until
recent efforts by Sea Hunt.” The court noted however that
Quicksilver claimed it was in a different location, but the court
documented resolution of that issue simply by saying that “Counsel
for Spain indicated that Spain believed that Sea Hunt, and not
Quicksilver, had found the actual JUNO.” So the court considered
Spain to be the authority on the location of the wreck, not Sea
Hunt. The Court said that it relied on the affidavit dated December
22, 1998, of David Beltran Catala, Counsel for Judicial Affairs at
Spain’s embassy in Washington. Within that affidavit were many
historical documents from Spanish archives. They provided the
testimony of Lt. Clemente of the Juno but it was noted that a
page of that testimony could not be located. That page described the
last day of the Juno before she disappeared. A Spanish naval
historian named Cesáreo
Fernández Duro apparently
had the information from that page in 1867 when he published
Naufragios de
la Armada Española.
It is from this work that we know that the Juno’s last
recorded position, taken less than 24 hours before she disappeared
in a sinking condition, was 280 miles from where the court was told
that she sank. Unfortunately, Duro’s work was not introduced as
evidence. This book is available at a number of Spanish Archives.
Spain had stated that the last recorded position was on October 24th
when the Juno met up with the Favorite. That position
was obviously in error as it placed the Juno 18 miles inland
from the ocean front at Chesapeake, Virginia.
May 26, 1999. Supplemental Brief of the Kingdom of Spain on the
Issue of Salvage27
Page 8. Spain said: “Sea Hunt’s filings belie any claim that its
salvage services have been successful. In fact, Sea Hunt has frankly
acknowledged in various public documents that it does not even know
for certain where the JUNO is.”
Page 14, under Conclusions referring to the Juno,
Spain said: “Second, Sea Hunt achieved no success in even locating,
much less salvaging, the wreck.”
Attached Affidavit of David Beltran Catala
Par. 10 “Based on information contained in Sea Hunt’s filings in
this Court and the attached exhibits prepared by Sea Hunt as reports
of its activities it is evident that Sea Hunt has provided no
credible information identifying the actual site of the Juno.”
Par 11. “Records show that the last position reported for Juno
was latitude 36° 44’N and longitude 76° 16’W on October 24, 1802,
three or four days before she sank, that she spent her last four
days in severe storm conditions, and that on her final day there was
a harsh wind blowing from the North West, which would have been
driving her away from the coast of America.”28
Par. 13. “If the Juno were in an identifiable location,
reports of sighting of wreckage or victims would be expected.”
Par. 14. “Quoting Sea Hunt’s December 15, 1998 report to the
Commonwealth of Virginia the report, ‘confirms that Sea Hunt has not
located the JUNO.’”
June 15, 1999 Supplemental Reply Brief of the Kingdom of Spain on
the Issue of Salvage29
Page 11. “Sea Hunt then fabricates an $83 million value for the
mythical treasure – based on a single stray coin for which no
provenience is given…This court should dismiss Sea Hunt’s salvage
claim for want of jurisdiction.”
June 15, 1999 Reply Brief of the Commonwealth of Virginia on the
Salvage Award Issue.30
Page 1. “The Commonwealth does not know the location of the JUNO
wreckage site. Spain claims that Sea Hunt has not found the
site…Until such time as this court has established a discrete
location of the JUNO wreckage site, recovery of historic artifacts
under the Virginia Marine Resources Commission Permits No. 97-0498
and No. 97-0163 (the permits) should be allowed to continue freely
in the areas covered by the permits.”
July 21, 2000, The Court of Appeals Rules
The Fourth Circuit Court of Appeals rendered its decision.31
It reversed the award of La Galga giving her to Spain
and affirmed the award of the Juno to Spain. In the very
first paragraph the court acknowledged the jurisdictional
prerequisites necessary for them to make any interpretations of
Spanish treaties and case law:
This in rem
admiralty action concerns the sovereign rights of the
Kingdom of Spain to two of its Royal Naval vessels, LA
GALGA and
JUNO, which were lost off the shores of present-day
Virginia in 1750
and 1802 respectively
Other descriptions of discovery were made affirming the Court’s
jurisdiction:
“LA GALGA remained undisturbed until the recent salvage efforts by
Sea
Hunt.”
And for the Juno, “but the location of the wreck was not
discovered until Sea Hunt's recent efforts.”
“Sea Hunt claims that its efforts have resulted in finding the
remains of LA GALGA and
JUNO.”
“It is undisputed that LA GALGA and JUNO are within Virginia's
submerged lands.”
The Court of Appeals did not say that that these two shipwrecks were
merely “discovered” by agreement of the parties.32 The
Court made no reservation about the Spanish shipwrecks not being
within the jurisdiction of the court. If it had, it would have
nullified all findings of law made subsequent to its claim that it
had jurisdiction over Spanish property. Because it was an in rem
action and a suit against the vessels, the court had to
affirmatively declare that Spanish property was in fact, not in
theory, arrested and brought into court before it could make any
ruling on Spain’s claims.
In 1983, there was a federal court ruling where, in spite of the
fact that no shipwrecks had been found, and the defendant shipwrecks
were fabricated by a con man, the make-believe ships were declared
property of the State of Maryland. This case called
Subaqueous
Exploration and Archaeology, Ltd. was reviewed by a legal
scholar who declared this decision was merely an advisory opinion to
the Attorney General of Maryland. He said that it was elementary
that a federal court has no power to render such an opinion. In the
Sea Hunt case the “shipwrecks” weren’t fraudulent but nonetheless
weren’t properly before the court. The court did not acquire
jurisdiction over two Spanish shipwrecks because they were never
discovered or arrested. In rem jurisdiction was never
acquired over Spanish shipwrecks. Jim Goold for Spain, even
acknowledged that they would be Spain’s if they were ever found.
Using the Subaqueous case as a close parallel, it seems that the
Sea
Hunt case is merely an
advisory opinion to the Kingdom of Spain. If
the court reached judgment without jurisdiction the judgment could
be considered void and subject to collateral attack.
After the award of La Galga and Juno to Spain,
arguments continued over who would get the artifacts. The decision
made by the Fourth Circuit Court of Appeals apparently did not
settle the argument over the location of the vessels.
Post Judgment
Nov 17, 2000. Response of the
Commonwealth of Virginia to the Motion of the Kingdom of Spain to
Terminate Appointment of Substitute Custodian and to Enforce
Judgment.33
Virginia argued that Spain had the burden of proof in determining
which artifacts were attributable to La Galga and Juno.
Virginia also said that Sea Hunt was prohibited from turning over to
Spain any artifacts that came from any other shipwreck. Virginia
suggested an item by item analysis with the burden of proof to be
put on Spain.
Page 6. “Not only has Spain never agreed that the recovered
artifacts came from their ships, Spain has never admitted that Sea
Hunt even found LA GALGA and/or JUNO.”
November 27, 2000. Kingdom of Spain Reply In Support of Motion to
Terminate Appointment of Substitute Custodian To Enforce Judgment
and For Other Relief34
Page 9. Spain submitted an exhibit (#5) prepared by Sea Hunt listing
27 shipwrecks that were known to be in the area. In that list was
La Galga and the Juno. There were only five dating from
1802 back to 1750. Spain suggested to the court that the artifacts
must have come from La Galga and the Juno since Sea
Hunt only listed two Spanish wrecks The implication was that this
list was somehow all inclusive. There are many other wrecks
documented as being lost in this area, any of which could have had
Spanish coinage aboard.
Sea Hunt and the Commonwealth of Virginia appealed to the Supreme
Court. That appeal was denied February 20, 2001.
March 2, 2001 Transcript of Proceedings35
Jim Goold for Spain expressed his growing frustration with
Virginia’s logical approach to the issue of artifact identity. P.16.
He said “[If] We have to go through the burden and expense of that,
and I would certainly want to reserve the right to pursue sanctions,
Your Honor, arising from what we consider to be a course of –and
I’ll say it without emotion—outrageous bad faith.” When the court
asked him sanctions for what, he said “for filing briefs with this
court, for example, that there is no evidence that the artifacts
came from the JUNO or LA GALGA, when the president of Sea Hunt
testified before Your Honor that he had located the vessels and was
recovering artifacts from them.”
p.
33. Frederick Fisher for the Commonwealth of Virginia, "...we want
to have control of our underwater land when we get through with
this, except for the area in which the La Galga and the
Juno lie. But the weakness of that exception is, nobody knows
where that is."
P. 45 Anthony Troy for Sea Hunt, "...we are not in a position to
confirm for in rem purposes that the ships are in fact those of the
Juno and or the La Galga."
March 16, 2001. Transcript of Proceedings36
P. Anthony Troy for Sea Hunt: “The record is clear that the parties
and the Court relied on supposition, conjecture, and speculation
when referring to unidentified vessels as the Juno and La
Galga.”
Frederick Fisher for the Commonwealth of Virginia:
P. 17 “…The problem with the two vessels, we don’t know where
theyare. We have some locations which may or may not be the
vessels…Spain would be
entitled to the Juno and La Galga if they were ever
found.”
P. 18. The weakness of that is that nobody knows if this is the site
of the JUNO or LA GALGA…This is the site by Act of the King of
Spain.”
p. 33: The Court: "The court is faced with a problem that, in
reading through this very thick file, that there is really no --
been any statement made by Sea Hunt positively this stuff came from
Juno or these artifacts came from Juno or La Galga."
Had the Correct Historical and Location Data Been
Presented to the Court
La Galga
1. The court would have found that La Galga was abandoned in
1750. Captain Daniel Huony, an agent for King Ferdinand VI, told
the sheriff of neighboring Worcester County that the “Owner of the
Land” owned the ship.37 After his return to Spain in
March 1751, Captain Huony stood before the investigating tribunal
and testified that the decision was made not to burn the wreck but
to let the English have it so that their passage out of there was a
safe one. He traded the safety of his crew for the wreck. This
decision was prompted no doubt because there were a number of
Englishmen held prisoner illegally until they escaped from the
wreck. Huony was absolved of any wrong doing by the Marques de la
Victoria, the Director of the Navy.38 Virginia would have
been granted title to the wreck if the court wanted to believe that
the wreck lie in the ocean. Otherwise it would have gone to the
federal government.
2. The Court would have found that Spain abandoned La Galga
by virtue of the 1763 Treaty of Peace and Friendship between the
Kingdoms of Spain, France, Portugal, and Great Britain. The Fourth
Circuit Court of Appeals39 upheld that Article XX of the
Treaty specifically ceded “all that Spain possesses on the continent
of North America” to Great Britain. That included everything
“in the most ample manner and form.” that
depended upon the land which the Catholick King had up until that
point. Great Britain, by diplomatic note, said “[T]he intention
behind Article XX was to transfer sovereignty over the territories
mentioned in that Article, and not to deal with, or other-wise
affect, the quite separate issue of the ownership of shipwrecks on
the waters adjacent to these or other territories in North America."
Spain cannot argue that this site is a military gravesite as the
record is clear that no one died onboard the wreck. The entire
language of the decision demonstrates that the court was operating
with wrong information. It assumed, incorrectly, that the shipwreck
was in the ocean.
3. Any interpretation of the Abandoned Shipwreck Act is invalid as
that act assumes that the shipwreck is lying in coastal or navigable
waters.
4. The court would have been required to review the 1943 deed
conveying the land today known as the Chincoteague National Wildlife
Refuge that encompasses the wreck. That deed says “It further
appearing to the Court that the United States of America, the
petitioner herein, has filed in this case in accordance with the
terms and provisions of the Acts of Congress approved August 1, 1888
(25 Stat. 357, USC sec 257); February 18, 1929 (45 Stat. 1222) and
February 26, 1931 (46 Stat. 1421; 40 U.S.C 288a), a Declaration of
Taking signed by the Honorable Oscar L. Chapman, Assistant Secretary
of the Interior has been duly authorized and empowered to acquire
for the United States of America the lands described in the
petition, and that the said Declaration of Taking shows that the
said lands, interests and estates therein are to be taken by the
United States of America for public use…It is further ADJUDGED,
ORDERED and DECREED that the said United States of America,
petitioner herein, shall have the right and power to take possession
of the lands condemned, and all fixtures, buildings and improvements
thereon, or any part thereof, as of this date, and all persons in
possession and control of any part or any of the said lands,
buildings and improvements thereon, or any part thereof, shall
immediately upon said date surrender the same to the United States
of America…”40
5. The Court would have found that the United States had a colorable
claim to La Galga since it is buried in federal lands and
that the United States would be an indispensable party to the Sea
Hunt action and that no valid decision could be reached without the
United States being a party to the suit. The U. S.
Government (NOAA) has listed since 1983 the likely location for
La Galga in its AWOIS database as being within the Chincoteague
National Wildlife Refuge.
http://www.nauticalcharts.noaa.gov/hsd/AWOISreg5.html
Record
# 3245. (This link has changed twice in past
two years. If you can't find it contact me.) This information was not disclosed to Spain in the Sea Hunt
case.
6. The court could have dismissed the action against La Galga
as it was not in navigable waters and not subject to the
court’s
special admiralty jurisdiction.
The Juno
When the court found that the
Juno was reported to be 280 miles from Assateague in a sinking
condition the day before she disappeared Spain would have been
asked, “how could the Juno get anywhere near Assateague
Island?” That question still begs an answer.
Today
The
precedent found in the Sea Hunt case has become a great threat to
the historic preservation efforts of our coastal states because
Spain can now, on the flimsiest of evidence, proclaim that a Spanish
ship is present in an area under study by American archaeologists.
This could be done with the discovery of one Spanish piece of eight,
a coin that was the predecessor of our own dollar and used
extensively as legal tender in this country until 1857. They could
argue that if there is any doubt to ownership the project must be
halted. Two unidentified shipwrecks, rightfully the property of the
Commonwealth of Virginia by virtue of the Abandoned Shipwreck Act,
are now off limits to their legal owner. The maritime history of
Virginia has been compromised. Virginia, however, refuses to
acknowledge in their official inventory of archaeological sites
recorded at their Department of Historic Resources that these two
ships were found.41 In direct contradiction to Virginia’s
assessment of the artifacts recovered by Sea Hunt, the National Park
Service signed a loan agreement with Spain to have these artifacts
displayed at the new visitor center planned at the Assateague Island
National Seashore.42 Their web site makes no reservation
that La Galga and Juno may not have been found: “The
NPS is honored to care for these objects on behalf of Spain, and to
make the objects available for scientific study and public
appreciation.”
Spain has claimed that the Juno is a military gravesite that
deserves to be recognized. It hasn’t. After eight years, Spain has
yet to pay these wreck sites a visit. For the 413 souls lost on the
Juno hundreds of miles out in the Atlantic there may never be
any closure.
The record of the confusion and lack of proof found in the Sea Hunt
case has been ignored. If the artifacts are ever displayed by the
National Park Service let’s hope that they will be properly labeled:
BEWARE! NOBODY KNOWS WHAT SHIPWRECK THESE CAME FROM.
Sources
1. Captain Huony of La Galga said he was on the border in
Virginia. October 13, 1750.
Report of the events of the frigate La Galga from her
departure from Havana to her loss off the coast of Virginia
to the Marques de Ensenada.
Archivo General de Simancas,
Secretaría de Marina 15 – 1.
Expediente 184. f. 599 – 600. His belief that he was in Virginia
remained until November when he was informed of the survey.
Archives of Maryland. Volume 28, Proceedings of the Council, pp
493-4
2. Archives of Maryland.
Volume 28, Proceedings of the Council, pp
481-2
3. Surveyor Book 6, page 84, Accomack County Courthouse, Accomack
County, VA
4. Plat Book #6, pp17-18 and Deed Book #168, p. 380, Accomack
County Courthouse, Accomack, VA. The Virginia portion of Assateague
was first patented in 1687. The patent said that this portion of
Assateague contained 3,500 acres at the time. Today that number is
nearly 10,000 acres. In a letter dated September 29, 1750 from
Thomas Lee, Acting Governor of Virginia, to the Duke of Bedford the
boundary with Maryland was described as ending about latitude 38°.
Maps produced after 1750 and into the 19th century
depicted the boundary line as latitude 38°.
5. Archives of Maryland.
Volume 28, Proceedings of the Council, pp
493-4. The Peninsula Enterprise, Accomack, Virginia, December
6, 1883.
6.
This position was stated in the
Columbian
Centinal
November 3, 1802. See #28 below.
7. Cesáreo Fernandez Duro gave this position in
Naufragios
de la Armada Española. It was taken
from the testimony of Lt. Clemente of the Juno.
Click here for the path of the Juno.
See also #28 below.
8. Quicksilver
International, Inc v. The Unidentified, wrecked and abandoned
Sailing Vessel
No. 88-618-N filed September 13, 1988. Since then Quicksilver always
asserted that they had found the Juno, In August of 2000,
they stated “we do not acknowledge that Sea Hunt has found the
Juno, or any other wreck for that matter…” The
Virginian-Pilot August 13, 2000.
9. The South Carolina Gazette, November 13, 1802, said
$700,000. The Boston Columbian Centinal of November 3rd
said $100,000. The $700,000 appears to be a typo.
10. The Virginian-Pilot. May 22, 1998.
11. Court testimony, September 19, 1998, pp. 15-16. The attorney for
Alpha Quest Corporation said that Richard Cook had shown Benson the
location of a wreck he believed was La Galga.
12. Letter from Commonwealth of Virginia to Sea Bay Salvors, March
30, 1982 documented that Alan Riebe applied for a permit for this
location on November 24, 1980. In
1983, an archaeological team was sent to the site and reported they
were unsuccessful in locating La Galga but noted a wreck at
this location. In 1989, Alpha Quest, with an exploration permit
granted by Virginia, claimed that this was La Galga. In 1994,
An assessment of Virginia’s Underwater Cultural Resources
Virginia Department of Historic Resources Survey and Planning Report
Series No. 3 exhibited a map of this area with a wreck symbol.
It was described as a vessel dated 1700-1899. But the narrative
related to La Galga classified it as a site that has been
neither located nor positively identified in state survey files.
13. Spanish coins
http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=011/llsl011.db&recNum=184
14. Brig Juno, to New York
went to pieces on Chincoteague Monday or Tuesday before April 15,
1817, Norfolk and Portsmouth Herald.
15. Statements by Peter Hess, attorney for Sea Hunt, p. 5,Transcript
of Proceedings, March 11, 1998.
16. Docket Entry #16.
17. Docket Entry #18.
18. Washington Post, July 7, 1998.
19. Docket Entry #80.
20. Transcript of Proceedings, p.8, April 1, 1999, Anthony Troy for
Sea Hunt. Docket Entry #133
21. Transcript of Proceedings, p. 9, April 1, 1999, Jim Goold for
Spain. Docket Entry #133.
22. The
Virginian-Pilot,
Sunday, September 28, 1997, Letters to the Editor from Glenn H.
Rogers, Chairman of Quicksilver International.
Not mentioned here was Lt. Clemente’s account found in
Naufragios de la Armada Española.
See #28 below.
23. Docket Entry #74.
24. Docket Entry #80.
Sea Hunt filed a motion to strike the verified claim of Spain on
grounds Spain failed to comply with Supplemental Rule c(6) and with
Local Rule (e)(3). Says Spain failed to verify claim of ownership
either under oath or by solemn affirmation in accordance with USC
1746. Supplemental Admiralty Rule C(2) gives the requirements for a
valid complaint for an action in rem. It must be verified
under oath,
describe with reasonable particularity the property that is the
subject of the action; and state that the property is within the
district or will be within the district while the action is pending.
In Spain’s verified complaint, they asserted ownership to La
Galga and the Juno. They made no independent assertion
that the vessels were within the district. They merely referred to
the fact that La Galga and the Juno were “asserted to
be the subject of this in rem litigation”. In other words, the
strength of their claim was no greater than the unproven assertions
made by Sea Hunt.
Sea Hunt’s attorneys objected to
the form of this verification pp 21-33 Transcript April 1, 1999.
Spain conditionally filed an amended verified claim which corrected
alleged defects.
25. Docket Entry #133.
26. The Court used this agreement as a substitute for a Spanish res.
27. Docket Entry #130.
28. The last position of the Juno offered by Spain was on
October 24 when Juno met up with the Favorite. They
used the testimony of Lt. Clemente filed in Washington, DC, on
November 13, 1802. This was found in the court record labeled
“Documento 4. 26 fotocopias obtenidas de los orignales obrantes en
el Legajo número 31 (150) de la Seccion Expediciones a Indias del
Archivo D. Alvaro de Bazán – Cuidad Real, España -, consistentes en
el expediente de Investigaciones desarrollado por las autoridas
espanoles al conocer el naufragio de la Fragata Juno, en el que
constan las declaraciones de los 7 supervinientes y las gestiones
efectuadas por el Consul General de España en Boston en orden a
localizer los restos del naufragio y los possible supervivientes. De
esta documentacion se acompaña transcripción mecanografica y
traducción no official al ingles. The page containing the entry for
October 27, 1802 was not available during the archival search but
was available to Cesáreo Fernandez Duro in 1867 when he wrote
Naufragios de la Armada Española :
Relacion histórica formada con presencia de los documentos oficiales
que existen en el Ministerio de Marina Texto impreso.
Madrid,
1867.
The position stated here was 38°N
56’W. This is
280 miles from Assateague Island.
In the Columbian
Centinal, November 3, 1802, the rendezvous with the Favorite
was described as 37°N, 67°W. In the London Gazette this
position was described as 36° 40’N and longitude 67° 16’W. It also
said there was only $100,000 aboard. The South Carolina
Gazette of November 13, however, said that the rendezvous
occurred at 36° 44’N 76° 16’W. This position is inland 18 miles from
the ocean front at Chesapeake, Virginia, an obvious error. The
longitude was apparently a transposition error as the Favorite
would have been way off course. The Favorite still had all of
her masts and sails and was in good sailing order. It appears that
this version was merely the same version of the Boston paper with
typos. The South Carolina paper said she had $700,000 on board,
another inconsistency. For the Favorite to be anywhere near
this location she would have to have been way off course from her
intended destination of Boston, Massachusetts.
29. Docket Entry #135.
30. Docket Entry #136.
31.
http://www.admiraltylawguide.com/circt/4thseahunt.html
32. See #26 above. This is the agreement referred to by the court.
Spain agreed to this, p. 99, Transcript of Proceedings April 1,
1999. Such agreements may not be available in an in rem
action. See
Owen, David R., Some Legal
Troubles With Treasure: Jurisdiction and Salvage, Journal of
Maritime Law and Commerce, Vol 16, No. 2, April, 1985. See also the
case Indian River Recovery Co. v. Adeline, Santa Rosalea,
Faithfull Steward, Three Brothers and Cornelia, Civ. A. Nos.
85-310 to 314, United States District Court for the District of
Delaware. 30 J. MAR. L. & COM. 253 June 11, 1986. In this case the
court declined to proceed to adjudicate title or salvage rights to
shipwrecks whose discovery was merely alleged. “Allegations in the
complaints about the existence and location of ancient wrecks based
upon research and investigation alone to not satisfy the Court that
such vessels actually rest at that location or exist at all.”
In support of the above in rem theory, offered here is
Spain’s own argument in its May 26, 1999 brief, p. 1: …”Sea Hunt is
not entitled to a salvage award for any action it has taken with the
JUNO. As an initial matter, the Court does not have jurisdiction in
this in rem proceeding to enter an in personam award
against Spain.” As a corollary this argument would then apply to
awards in favor of Spain.
33. Docket Entry #161.
34. Docket Entry #163.
35. Docket Entry #185.
36. Docket Entry #184.
37.
Archives of
Maryland.
Volume 28, Proceedings of the Council, pp 481-2
38.
Archivo General de Simancas,
Secretaría de Marina 15 – 1. Expediente 184. f. 613 et seq..
39.
http://www.admiraltylawguide.com/circt/4thseahunt.html
40.
Deed Book #168, p 380, Accomack County Court House, Accomack, VA.
41. Department of Historic Resources, Richmond, Virginia. The site
form for the “Juno”, DHR ID# 44AC0402, says that the wreck is
not the Juno. There is no site form for La Galga.
42. The loan agreement was signed October 17, 2006. Spain, through
its attorneys, knew of the confusion over the
artifacts. A month after Spain was awarded the Juno by the
district court it filed a pleading which stated without
reservation,”
Sea Hunt achieved no success in even locating, much less salvaging,
the wreck.” (See May 26, 1999
above).
Perhaps this “loan” of artifacts was made to add weight to the legal
precedent gained in the Sea hunt case.
http://www.nps.gov/archeology/SITES/npSites/assateague.htm |