Media reports in recent weeks have reminded us of a fascinating case study on contested heritage rights, shipwrecks and salvage.
Vaunting a proposal to smelt down a bronze eagle which formerly adorned a Nazi warship, the President of Uruguay has found himself in the middle of a cultural heritage storm, having opined that:
Readers may have read of the intriguing case of the Graf Spee eagle, recovered from the wreck of the German battleship in 2006 which sits on the bed of the River Plate in Uruguayan waters in Montevideo.
This episode raises interesting questions about our approach to cultural heritage generally, glossed with some particular issues which arise in the context of shipwrecks.
Having sought refuge in Montevideo whilst being chased by three Royal Navy warships, the Graf Spee was scuttled in 1939 by her skipper following the first major naval battle of the Second World War to prevent Nazi secrets falling into the hands of the British. Before her demise, she had sunk eight British merchant ships between September and December 1939.
The wreck site included a 2m high bronze eagle, with a wingspan of 2.8m, clasping a swastika emblazoned under its talons.
The eagle was recovered in 2006 by commercial salvors. The reputedly multimillion dollar effort was funded by private investors from the US and Europe. It is reported that this expedition included marine archaeologist Mensun Bound, central to the discovery of Shackleton’s Endeavour, on which I wrote last year.
The eagle’s fate has been the subject of extensive litigation on the question of ownership and disposal. A first instance court had ruled that the eagle should be auctioned within 90 days by the government to meet the costs of the salvors. I cannot pretend to be an expert in the maritime law of Uruguay but it looks as though the court was applying principles similar to those in common law jurisdictions which have in view the rights of the salvor. Readers will know that the law of salvage (unlike the law of finds) aims at providing compensation for the risk of the venture, rather than a transfer of title, but different jurisdictions interpret the law of salvage differently. It is reported that when the sale did not materialise the commercial salvors sued the Uruguayan government in breach of contract. This suggests that title had not vested in (or been declared to vest in) the salvors.
However, in December 2022 reports confirm that the Supreme Court of Uruguay ruled that the eagle belonged to the State. This has given rise to a challenge about how Uruguay decides the eagle’s fate.
I understand that under Uruguayan law, as explained by its Supreme Court, the proceeds of such recoveries in Uruguayan waters belong half and half to the State and the salvor, with a caveat that the share for the salvor is half the value of whatever is recovered, not the piece in itself (for example, one of the wings of the eagle). It is reported that the Supreme Court of Uruguay confirmed that the recovered wreck is government property which means that the salvors should recover half the value, once the Uruguayan government decides on the disposal of the piece (whether by sale, auction or other means).
To that extent, the Uruguayan approach mirrors the approach taken in some common law jurisdictions such as Florida, where the state takes a portion of the estimated value (see my earlier article on the discovery of the “1715 fleet” off the coast of Florida a number of years ago).
The German dimension begs interesting questions of international law, particularly since the Graf Spee was a warship.
The international legal dimension is too complex for a blog post such as this but a range of international conventions are usually relevant to disputes about historic wrecks, particularly the United Nations Convention on the Law of the Sea 1982 (‘UNCLOS’), which Uruguay signed and ratified on 10 December 1982, along with other elements of international law.
Without getting into great detail here, however, the status of sunken warships is not wholly clear (where such vessels no longer retain their essential function, and where it is not clear whether States have retained ownership over time). Many commentators agree that such protection is part of customary international law, or that it may become so. On any basis, opinion is coalescing in that direction.
Despite the uncertainty, in historic shipwreck disputes States often argue that wrecked warships should be immune from a claim to jurisdiction in competing States. For example, in the case relating to the wreck of the Nuestra Señora de las Mercedes (the “Black Swan”), the Kingdom of Spain argued – successfully – that it had not abandoned its ownership in vessels which were lost while in the service of the Kingdom.
In passing I should note that Uruguay is not a State Party to the 2001 Convention on the Protection of the Underwater Cultural Heritage – with its strong preference for in situ preservation – but it would not apply anyway, given that the wreck site is under 100 years old.
Reports suggest that the matter of ownership has been something of a fraught international matter. In 2019, it was reported that Germany had asserted rights of ownership over the vessel and the eagle. This would certainly be consistent with principles of international law which seek to protect the sovereignty of warships.
One can imagine that the German government found itself in a difficult place in asserting sovereignty over such a wreck. It is not clear how the court of first instance resolved the German claim (though it plainly rejected it), or whether the German State restated its position before the Supreme Court.
So, where does this leave the piece? At the moment, it is apparently housed in a crate in a warehouse.
One option is display, probably on the basis of the ‘retain and explain’ approach to contested heritage (i.e. to exhibit it with appropriate contextual material). However, according to reports, when the artefact was displayed briefly a number of years ago, Germany complained on the basis that Uruguay was showcasing “Nazi paraphernalia”. The Simon Wiesenthal Center, a Jewish human rights organisation dedicated to Holocaust research and remembrance, has reportedly previously warned that it could fall into the hands of Nazi sympathisers.
Perhaps for this reason, the president had given the view set out at the top of the article intending to be pragmatic and forward thinking, adding that Uruguayan sculptor, Pablo Atchugarry, had been commissioned to recast the eagle.
However, shortly after his announcement President Lacalle Pou announced that the idea had been shelved. He is reported as saying that “In the few hours that have passed [since the announcement], an overwhelming majority of people has come forward who don’t share the decision. When you aim for peace, the first thing you need to do is create unity and this [idea] clearly didn’t.”.
He did not say what would happen to the bronze now.
In passing, it is not clear to me how the president’s proposal would have given effect to the Supreme Court’s ruling. Would salvors have half the value of the smelted and recast bronze? The value of the piece is surely different from its constituent material. How could such value be realised once it had been recast into a public work of art? These, and so many similar questions, are unanswered.
In many ways, the answer may depend on whether a person is a hawk or a dove in their approach to cultural heritage preservation. While unattractive as an outcome for many, in some ways the solution would have been easier if left to the law of salvage or finds. However, the decision of the Supreme Court is a “game changer”; in effecting a transfer of the outcome from private hands to the State, any decision is inevitably less straightforward. The president’s sentiments may be admirable given the context of this discovery, but may set an unwelcome precedent for cultural heritage destruction contrary to the norms of international law, even for something as abhorrent as Nazi memorabilia. It is hard to argue that such artefacts don’t have important historical value. This cautionary tale reminds us that questions of contested heritage are difficult, and unanimity is seldom found. Collaboration must be the watchword going forward, supported by a sound legal process.
Graf Spee eagle, 12 February 2006, Fernando da Rosa via Wikimedia Commons CC 3.0 – File:Graf spee 03b.jpg – Wikimedia Commons