Who Owns the San Jose Galleon?
A few centuries ago, the Spanish Navy sailed the seas with one of the most powerful fleets in existence. One ship in that fleet was the San Jose, a three-masted, 62-gun galleon that made regular voyages from Peru to Spain, carrying precious metals and gems. She was usually protected by a fleet of warships during the long journey home laden with cargo.
In 1708, however, Spain was locked in battle with England in the War of the Spanish Succession, and the San Jose’s protection squad was delayed. So, she set out alone and ultimately to her doom. Four English warships attacked the San Jose, sending the ship, her roughly 600-person crew, and her cargo of gems and precious metals to the ocean floor.
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The exact location of the shipwreck was lost, and more than 300 years passed before the Woods Hole Oceanographic Institution (WHOI) confirmed it had located the San Jose off the coast of Colombia in November 2015.
Under authorization from the Maritime Archaeology Consultants (MAC), Switzerland AG, and the Colombian Government, WHOI used an autonomous underwater vehicle to survey the area off Colombia’s Baru Peninsula where the San Jose was located more than 600 meters below the ocean’s surface.
“The San Jose discovery carries considerable cultural and historical significance for the Colombian government and people because of the ship’s treasure of cultural and historical artifacts and the clues they may provide about Europe’s economic, social, and political climate in the early 18th century,” WHOI said in a press release on the discovery. “The Colombian Government plans to build a museum and world-class conservation laboratory to preserve and publicly display the wreck’s contents, including cannons, ceramics, and other artifacts.”
There was only one problem. Someone else had claimed to discover the wreckage of the San Jose nearly 30 years before WHOI’s announcement, sowing confusion over who owns the galleon and its cargo—worth an estimated $17 billion—and who is responsible for its protection.
Before WHOI entered the scene in the 2000s, Colombia’s Dirección General Marítima authorized the Glocca Mora Company (GMC) in 1980 to search for shipwrecks off the country’s coast.
GMC located what it thought was the wreckage of the San Jose in 1981, and Colombia agreed to give the company 35 percent of the treasure recovered from the site. Three years later, GMC assigned its rights to the treasure to Sea Search Armada (SSA), an American salvage company.
“Colombia, however, refused to sign a written contract with SSA and denied SSA permission to perform full salvage operations at the San Jose site,” according to a civil court case filed in the United States against Colombia. “Soon thereafter, the Colombian Parliament passed a law giving Colombia all rights to treasure recovered from the San Jose site, thereby extinguishing any rights SSA had. Under the new law, SSA would be entitled only to a 5 percent finder’s fee, which would be taxed at a rate of 45 percent.”
SSA filed suit against Colombia in 1989, challenging the constitutionality of the law change. After decades in the court system, the Supreme Court of Colombia upheld a lower court ruling in 2007 that Colombia and SSA were entitled to equal shares of the San Jose’s treasure—50 percent.
However, Colombia maintained that the site SSA identified as where the San Jose was located was not accurate—eliminating any stake SSA had in the galleon. And to prove its point, Colombia hired WHOI to locate the current site in question in 2015. This launched another legal battle between SSA and Colombia over ownership of the San Jose’s contents.
In April 2019, the Superior Tribunal of Barranquilla issued an embargo on salvaging of the San Jose site while the claims to ownership are worked out in the court system. In addition to SSA’s and Colombia’s claims, Spain has also claimed it has rights to the ship.
Spain argues that the San Jose “is a military vessel and therefore is still Spanish property under the terms of a United Nations treaty, of which Colombia is not a signatory,” Reuters reports. “Spain has also said that 570 of its citizens are contained within the wreck and should be respected.”
This is the stance that ASIS International Cultural Properties Council member Ricardo Sanz Marcos takes. Sanz Marcos, who is partner and manager at the consulting firm ProArPa—which specializes in security asset protection for cultural heritage sites—says that the San Jose is to Spain what the USS Arizona is to Americans.
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“This is our legacy; all shipwrecks are the testimony of trade and cultural dialogue of peoples,” Sanz Marcos says. “They can be used to travel through time to find out what life was like onboard at the time of the shipwreck. If we can seriously study the shipwreck, we can learn a lot of the history of the humanities as they existed three centuries ago.”
Currently, Spain is advocating for the United Nations Educational, Scientific, and Cultural Organization (UNESCO) to get involved and oversee the San Jose site. In a letter to Colombian Cultural Minister Mariana Garces Cordoba in 2018, UNESCO called for Colombia to refrain from commercial exploitation of the San Jose.
“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,” the letter said. “The San Jose shipwreck represents cultural heritage.”
The ideal situation, Sanz Marcos says, would be for Colombia and Spain to reach an agreement about ownership and to have the San Jose site placed under UNESCO’s protection.
“Think about the magnitude of the problem. There are thousands of historical shipwrecks around the globe,” he explains. “The only solution, in my opinion, is that organizations under UNESCO’s supervision protect these sites.”
However, Sanz Marcos is not optimistic that a deal like this will happen anytime in the near future—partly because Colombia is not a signee of the UNESCO convention and the parties involved have differing economic interests.
“Colombia will keep absolutely secret the coordinates where the shipwreck can be found and will not give up in the face of strategies to reveal this valuable information,” said Colombian Vice President Marta Lucia Ramirez in a briefing in April 2019. Colombia has not filed a suit to contest the court’s embargo of the San Jose site.
Securing the Site
With the ownership of the San Jose under contention, who is ultimately responsible for the security of the site to prevent treasure thieves from taking artifacts or to prevent damage to the site?
Nations have the right to regulate and authorize activity at underwater cultural heritage sites located in their inland waters, internal waters, archipelagic waters, and territorial sea. But outside of these zones, their jurisdiction is decreased and extends only to vessels flying a nation’s flag and individuals.
UNESCO sought to address this in 2001 by establishing its convention to create an international cooperation scheme to protect cultural heritage.
“Through this cooperation system, the 2001 Convention takes a significant place in the group of international legal instruments functioning beyond the borders of states and lives up to the task of protecting assets of importance to humanity in a global approach,” according to UNESCO. “It expressly regulates that the state, which coordinates protective measures under the convention in international waters, does so for all states parties…for the benefit of humanity.”
Under the convention, states must obtain reports of discoveries and any intended activities at underwater cultural heritage sites by vessels and nationals under the protection of their flag, and states must notify UNESCO and the area’s secretary general of the International Seabed Authority of these discoveries and activities.
After notifying UNESCO, states can then declare their interest in being consulted on any activities at the respective cultural heritage site so they can then work together to take any action related to that site.
However, not all nations signed on to the 2001 Convention—including the United States, the United Kingdom, and Colombia. And given the unknown location of the San Jose site, it’s unclear if it falls within a zone that is controlled by Colombia or is considered to be in international waters.
This makes it difficult to determine who is responsible for the security of the site, which could be vulnerable during the legal process to a variety of threats—including construction, commercial exploitation, environmental and climate change, development of the seabed, pillaging, trawling and fishing, and tourism.
“Underwater cultural heritage is becoming increasingly accessible since Jacques Cousteau and Emile Gagnan invented in 1942–43 the aqualung, which allowed the reach of greater depths not only by scientists and archaeologists, but also by treasure hunters and salvage explorers,” according to UNESCO.
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“Since then, looting of the underwater archeological sites and destruction of their contents have increased rapidly and threaten to deprive humanity of this heritage. The pillaging and dispersion of archeological heritage is no longer restricted to land-based sites, with treasure hunting now taking place also underwater.”
One challenge with protecting underwater cultural heritage sites is often their remoteness, says James H. Clark, CPP, Cultural Properties Council member and founder of Clark Security Group, LLC.
“These places are usually not achievable to get to unless you have the right watercraft and equipment,” he explains. “It’s difficult to enforce those sites, unless they’re protected by UNESCO or patrolled regularly.”
And, should something disturb the site, Clark says its uncertain who would respond or how authorities would be alerted to the disruption.
“Even if you had an enforcement body, everybody is busy in this world,” he adds. “If you lay another responsibility on an international body or consortium…you have to consider whether they’re going to do anything about it. And the answer is probably a mixed answer, because it depends on what interest they have.”
There are some sonar systems on the market that could be used to create a perimeter to detect when someone—or something—has entered a protected site; however these technologies do not seem to be widely available or used, says Robert Carotenuto, CPP, PCI, PSP, associate vice president for security at the New York Botanical Garden and member of the Cultural Properties Council.
This means that looting and treasure hunting are likely being conducted. To prevent this activity from continuing, the cultural properties community has banded together to make looting less profitable for thieves.
“There are rules governing all artifacts that are more than 100 years old,” Carotenuto explains. “Groups like the American Association of Museums have rules of governing provenance—what you’re allowed to sell and what you’re not allowed to sell. If there’s no trade in those artifacts—if we do the policing on the land side—that will discourage people seeking to disturb these sites.”
And, if there’s no guarantee of a payout from looting, thieves are less likely to invest in the sophisticated equipment that’s necessary to obtain artifacts from underwater sites.
“People need funds to be able to do this,” Carotenuto adds. “We want to discourage people, the small-time thieves or pirates who figure they can dive to a site. If there’s no money to be made, people won’t risk their lives trying to obtain objects from these sites.”
In the meantime, the San Jose, her crew, and her cargo remain in the ocean and vulnerable.
“We’re not thinking about the treasure—the silver, gold, and emeralds,” Sanz Marcos says. “We’re thinking about the trace of our history, the trace of commerce of our people during thousands of years. This is a huge problem, and the only solution is for a team of countries with resources to work together to protect it.”