Readers will doubtless recall fictional archaeologist explorer Indiana Jones’ quest to find the holy grail, a cup providing eternal youth or sustenance in infinite abundance and, by analogy, an elusive object or goal of great significance.

Readers may also recall that some time ago on this blog (2018 indeed) I noted that UNESCO had weighed in against the potential exploitation of the wreck of the three centuries’ old galleon, San José, hailed by some the “holy grail” of shipwrecks. I promised to keep a watching brief on the story.

The San José was part of a Spanish treasure fleet during the War of the Spanish Succession – a trade convoy which circulated between Spain and its New World territories to finance the Spanish king’s war effort. Reportedly laden with gold, silver and emeralds, she was one of the largest barques of the fleet, along with the San Joaquin. As I indicated in my previous post, the wreck –  identified by her bronze cannon decorated with dolphins – is believed to comprise 11 million gold and silver coins, emeralds and other precious specie from Spanish-controlled colonies.

Commentators write of a “fateful night” when on 8 June 1708 (according to the New Style calendar dating system), the fleet met a British squadron under the control of English commander Commodore (later Admiral) Charles Wager leading to a battle known as Wager’s Action. Although contemporary accounts are thin on the ground, it is reported that during salvoes between Wager’s flagship the Expedition and the San José, the powder magazines of the San José detonated, sinking the ship, killing nearly all 600 souls on board and taking the treasure to the sea floor. The San José lies at a depth of approximately 1,000 feet 16 miles off the city of Cartagena.

From the perspective of those of us interested in shipwrecks, the San José is certainly the gift that keeps on giving.

Life often moves slowly in the cultural heritage world, and just before Christmas media reports confirmed that the Colombian government would seek to recover objects from the 1708 wreck, valued by some at up to £16 billion in today’s money. Reports claim that the Colombian government wishes to raise the three-masted, 64-gun galleon as part of a public-private partnership.

As I indicated in my previous post, the fate of the discovered wreck site has been marked by legal wrangling between the US, Colombia and Spain as to which present day state owns the wreck.

As I wrote in 2018, the wreck is controversial because it is both an archaeological and economic treasure. As such, it provides a vivid example of a wreck which pits the commercial salvage community against those who advocate in situ preservation. As I noted at that time, UNESCO fears commercial exploitation of the wreck. A letter reportedly sent in 2018 stated:

“Allowing the commercial exploitation of Colombia’s cultural heritage goes against the best scientific standards and international ethical principles as laid down especially in the UNESCO Underwater Cultural Heritage Convention”.

Other commentators have set out the legal travails since the wreck’s discovery. The discovery was initially financed by a group of US investors known as ‘Sea Search Armada’ (SSA) who reportedly sought to agree a 65:35 division of the spoils with the Colombian government. They report that the Colombian government subsequently denied SSA salvage rights, and enacted legislation which gave the state the right to all the treasure, leaving SSA with a 5% finder’s fee.  This led to further litigation in the courts of Colombia and the U.S. District of Colombia, but to no avail.

In support of that account other reports suggest that in 2013 Colombia enacted legislation which defines sunken ships found in its territorial waters as its cultural patrimony. On that basis I understand that Colombia claims the wreck as its submerged cultural patrimony, and as a result the government may be constitutionally obliged to protect and preserve the wreck and its contents.

I should emphasise that I don’t hold myself out as an expert in the law of Colombia so I cannot confirm whether that is the correct legal position.

The Colombian culture minister, Juan David Correa, has said that the first attempts at recovery will be made between April and May, though this will depend on oceanographic conditions. Following a meeting with President Gustavo Petro, he is reported to have said:

“This is an opportunity for us to become a country at the forefront of underwater archaeological research.”

The same outlet reports Correa as saying:

“This is an archaeological wreck, not a treasure”.

He is also reported to have pledged that the quest will be a “scientific exploration” and that finds from the wreck site – which may be lifted by submersible or robotic craft – would be taken aboard a navy ship for analysis. In 2015, reports note that then Colombian President Juan Manuel Santos stated that a museum would be built in Cartagena to host some of the galleon’s contents.

The extent to which the wreck site and its contents must be preserved in situ, or if not in situ at least intact is not clear. Some accounts indicate that in 2015 the Office of the Inspector General of Colombia requested that a representative sum of the coins, ingots and gemstones, which may not be considered to form part of Colombia’s cultural patrimony, should be given to the central bank for preservation. If correct, this suggests that the collection need not remain intact.

Colombia is not a party to the UN Convention on the Law of the Sea (not having ratified the Convention), nor the UNESCO Convention on Protection of the Underwater Cultural Heritage (2001) (‘UCH’). As a consequence, the obligations of international law which seek to protect wreck sites in those conventions won’t apply here.

Even were Colombia a UCH signatory, the position would not be clear cut because the San José formed part of the Spanish Armada de la Guardia de la Carrera de las Indias, and was a warship in the service of the Spanish navy at the time of her sinking. I have explained previously that the status of sunken warships is not entirely clear, but in historic shipwreck disputes states often argue that wrecked warships should be immune from a claim to jurisdiction in competing states. Indeed, in 2015 it was reported that the Kingdom of Spain claimed the rights to the wreck.

Readers might recall that – where it applies – the UCH encourages international agreements for the preservation of underwater cultural heritage, which may include States Parties which have a “verifiable link”, especially a cultural, historical or archaeological link.

To that end it is worth remembering which other states might have such a link: the San José was built in the Gipuzkoa territory of Spain; she carried bounty exchanged at a fair in Portobelo on the east coast of Panama; and sank in Colombian waters having engaged English vessels. Others report that Bolivia’s Indigenous Qhara Qhara nation and other descendants of pre-Spanish peoples have demanded a share, on the basis that their ancestors were, they claim, forced to mine the metal for the treasure.

Recent reports fall short of setting out whether the intra-state wrangling over ownership has been resolved.

Assuming that it has (and that further challenges don’t ensue following any recovery), the reports so far suggest that representatives of the Colombian government are making the right noises, and there has been no suggestion of commercial exploitation, but whether the government can make good on its promises remains to be seen, particularly if the bounty is as rich as reported. Reports stop short of saying how any private, one assumes commercial, involvement in this project will be funded or remunerated.

Many other questions remain such as the proposed approach to human remains (this is after all a gravesite for nearly 600 souls) and how the Colombian state would deal with coins, ingots and gems which may not form part of its cultural patrimony.

Standing back, even though the UCH does not apply, this looks like a paradigm case for an international compact, given the significance of the wreck site, particularly given the government’s stated aim that Colombia should establish itself at the vanguard of archaeological research. In pursuit of that aim, why not harness the experience and skills of other nations? Readers should remember that other multilateral concords have been agreed to address other wrecks of significance, for example, in connection with RMS Titanic, where an agreement came into force in 2019 following ratification by the US (the agreement was negotiated between the UK, US, France and Canada but only required ratification by two parties to come into effect), and which essentially puts in place a methodology which reflects the practice set out in the UCH. This might be a model for Colombia to study.

Image Credits:

Samuel Scott, Wager’s Action off Cartagena, 28 May 1708, pre-1772, Royal Museums Greenwich, public domain via Wikimedia Commons.