Controversy Surrounding the Discovery

Within the controversy surrounding Nuestra Señora de las Mercedes, there emerge two very different arguments that highlight and bring into question two different aspects of maritime archaeology.
“A Cultural Treasure Recovered” exhibition of the Mercedes in the National Archeological Museum

The court case concerning the discovery of Nuestra Señora de las Mercedes took place on December 22, 2009, at a United States District Court in Tampa, Florida. The litigants of the case were Odyssey Marine Exploration, INC., Plaintiff v. Unidentified, Shipwrecked Vessel, Defendant, Kingdom of Spain, et al., Claimants.1 Judge Mark A. Pizzo presided over the case.

While it might seem odd that a case concerning a Spanish ship found in Portuguese waters would be contested in a court in the United States, the US Consitution gives the US judicial power on admiralty and maritime jurisdiction. Furthermore, cases concerning sovereignty and succession of statehood benefit from being overseen by a neutral party, as was the case between Peru and Spain.2

Odyssey Marine vs. Spain

How does knowing the identity of a wreck affect sovereign immunity and salvaging rights?

This discussion surrounding salvaging politics is based on the fact that Spain did not fully grant permission to Odyssey to explore the Mercedes, and thus they would retain sovereignty of the wreck, or res, that Odyssey found unless the company could disprove the identity of the ship.3

Odyssey Marine Exploration logo 2023

“at the current level of site reconnaissance and study, there is no definitive archaeological evidence [that] Odyssey set out to find the Mercedes and found it”4 -Odyssey Marine

The presence of over half a million coins, all of which were Spanish nationality, as well as distinctive cannons and other artifacts provided significant evidence that the res was the Mercedes. Odyssey wanted to keep the almost 500 million dollars of treasure as a separate entity from the Mercedes itself, which is why they based their argument off of incomplete identification of the res. However, “Judge Pizzo [did] not agree with [Odyssey’s] assertion that admiralty law requires a distinction between a vessel and its cargo.”5 Because the treasure was determined beyond doubt to belong to the Mercedes, the FSIA (Foreign Sovereign Immunities Act) granted immunity to what Odyssey recovered from the wreck forcing them to return it to Spain.6

Peru vs. Spain

How does the succession of statehood affect the newly independent state’s rights to scavenged treasure?

The scale of Peru’s claim to the Mercedes is a similarly contested and impactful claim on worldwide maritime politics, as it sought to address century-long disputes of independence in conjunction with salvage rights.

The Spanish Empire during the second half of the 18th century

The Spanish Empire during the second half of the 18th century

In this case, Peru bases its argument on conventions of colonialism and succession that state that physical and cultural property that originated in a state belongs to that state even if it was under the control of a different power in the past.7 A majority of the coins on the Mercedes for example, were minted in Peru, so the country advocated for legal claim over the artifacts Odyssey recovered from the wreck. Furthermore, Peru argued how the cargo aboard the Mercedes was en route to France and only passing through Spain for a matter of days, making their claim of sovereignty even less sound.8 However historical evidence like these claims have not held up in court in the past, and the same was true for the Mercedes case. Peru’s claim to the treasure was ultimately dismissed.

A model of the ‘Nuestra Señora de las Mercedes’ warship.

Nuestra Señora de las Mercedes is one of many examples of a shipwreck whose rise to fame and eventual downfall were due to the expansive treasure and intriguing story that emerged with the discovery of the ship. A violent death combined with thousands of tons of valuable artifacts being lifted directly from the ocean floor was more than enough to not only put the Mercedes in the public eye but also in the courtroom. Although the cases raised against Spain by Odyssey Marine and Peru might seem very different at first, they both highlight aspects of not just how maritime culture has changed over the centuries, but how it has remained distinct from terrestrial exploration conflicts.

The inherent instability of the sea is at the root of these complex sovereignty disputes. Artifacts on land are buried in the Earth, often preserved for future archaeologists to discover. However, shipwrecks are subject to intense degradation by the ocean currents and changing sea floors, making discovery and identification much more difficult. As we have seen throughout the discovery and claiming of the Mercedes, the focus is not on the ship itself, or even the site at which the remains of the vessel were discovered, but on the objects recovered from the site. This bias toward salvaging rather than preservation of a historical site is unique to maritime archaeology, and the primary reason why maritime law is such a contested subject. These areas cannot be used for tourism and are very hard to access for further study, so legal disputes like with the Mercedes rely entirely on the identification of artifacts.

This distinction the Mercedes provides between terrestrial and maritime exploration extends to the second part of the case with Peru as well. Ships see travel across a much wider breadth of areas and cultures than similar trade routes on land, and thus the goods they acquire vary similarly. Even though the majority of the coins recovered from the wreck were minted in Peru, the ship itself was launched from Cuba, with other cargo having even more variety in origin. Even though most of the treasure on the Mercedes was from viceroyalties within the Spanish empire at the time, the goods still carried distinct cultural value and history from their respective areas. However, in the court case against Spain, we can see how the goods aboard the ship were viewed as one homogenous entity. Often maritime law does not take into account the many subtleties that differentiate aspects of history at sea, and in cases like the state succession of Peru, artifacts of cultural significance can be lost.

Footnote Citations

  1. Merryday, ODYSSEY MARINE EXPLORATION, INC., Plaintiff v. THE UNIDENTIFIED SHIPWRECKED VESSEL, Defendant., Case No. 8:07-cv-614-T-23MAP, 1.
  2. Nelson, “Finders Weepers-Losers Weepers,” sec. II B.
  3. Merryday, ODYSSEY MARINE EXPLORATION, INC., Plaintiff v. THE UNIDENTIFIED SHIPWRECKED VESSEL, Defendant., Case No. 8:07-cv-614-T-23MAP, 2.
  4. Merryday, ODYSSEY MARINE EXPLORATION, INC., Plaintiff v. THE UNIDENTIFIED SHIPWRECKED VESSEL, Defendant., Case No. 8:07-cv-614-T-23MAP, 4-5.
  5. Nelson, “Finders Weepers-Losers Weepers,” sec. II A.
  6., “Sovereign Immunities Act.”
  7. Merryday, ODYSSEY MARINE EXPLORATION, INC., Plaintiff v. THE UNIDENTIFIED SHIPWRECKED VESSEL, Defendant., Case No. 8:07-cv-614-T-23MAP, 11-12.
  8. Nelson, “Finders Weepers-Losers Weepers,” sec. II C.