By YOURI KEMP

Tribune Business Reporter

ykemp@tribunemedia.net

The Bahamas faces a battle with the Spanish government to lay claim to sunken treasure and historical artifacts worth potentially millions of dollars that lie within this nation’s waters.

James Goold, an attorney with US law firm, Covington & Burling, asserted to Tribune Business yesterday that any Spanish galleon wrecked in Bahamian waters, as well as the cargo it was carrying, is the property of that nation’s government and not The Bahamas.

The Washington DC-based lawyer, who has successfully represented Spain in previous legal disputes against underwater explorers and salvors, added that the Madrid government was vehemently opposed to so-called treasure hunting and wanted its underwater cultural heritage to be recovered and preserved in museums for the public’s benefit.

Mr Goold’s intervention adds a new twist to The Bahamas’ efforts to regulate, and extract a greater share of the proceeds from, underwater wreck exploration and salvaging in its territorial waters. It holds particular significance for efforts by US multi-millionaire, Carl Allen, the Walker’s Cay owner, and his Allen Exploration outfit, to retrieve valuable artifacts from the the sunken Spanish treasure galleon, the Nuestra Senora de la Maravillas.

David Concannon, spokesperson for Allen Exploration, yesterday dismissed Mr Goold’s position as “not supported by the law of The Bahamas”. He added that Bahamian law gives the explorer permission to salvage the galleon under the licence granted by the Government in 2018. Both the Abandoned Wreck Act 1965, and Antiquities Monuments & Museums Corporation (AMMC) Act 2011, vest rights to both the wreck and recovered artifacts in the Bahamian government.

Mr Goold, though, insisted: “The Spanish government and UNESCO (the United Nations Education, Scientific and Cultural Organisation), and many other nations, have a strong interest in creating programmes to preserve underwater cultural heritage for public benefit. This is opposed to treasure hunting. The Spanish government has a strong interest in preservation of sunken Spanish underwater cultural heritage for public benefit and is against treasure hunting.”

Confronted with Bahamian law, which seemingly vests the rights to this cultural heritage in this nation’s government, Mr Goold replied: “In general, the legal principle which I represent Spain on is that the owner of the ship remains the owner after it has sunk, and I’ve won multiple cases in the United States for that principle, which is done in order to protect it for museums and study.”

The Spanish government has not been slow in the past to initiate litigation over the fate of galleons, laden with booty and riches seized from its Western Hemisphere colonies, that sank centuries ago. Mr Goold was involved with a claim that ended up in US federal court in 2007, involving the well-known underwater salvor, Odyssey Marine Exploration.

He successfully argued that the Nuestra Senora de las Mercedes, an 1804 warship, was Spanish property. The contents of its recovered cargo, including an estimated $500m worth of gold and silver coins, were shipped back to Spain in 2012 due to the legal outcome.

The Spanish government also sued Odyssey for $1m over what was termed “bad faith and abusive litigation”, but since abandoned that claim in return for the explorer relinquishing more of the coins and artifacts it had removed from the wreck prior to the court verdict.

Allen Exploration’s Mr Concannon, though, dismissed the Spanish threat. He said: “Mr Goold’s opinion is not supported by the law of The Bahamas. The Bahamas follows the British law on ownership that has been in place since the signing of the Magna Carta. That is, anything buried in the soil belongs to the landowner. This has been the law in the Bahamas since at least 1965.”

The Abandoned Wreck Act 1965 says: “Claims of all persons to abandoned wreck are hereby barred, and the property in all such wreck is hereby vested in Her Majesty in right of Her Government of The Bahamas except wreck found in any place where Her Majesty or any of Her royal predecessors has granted to any other person the right to that wreck.”

The Antiquities Monuments & Museums Corporation (AMMC) Act 2011 adds: “The ownership of every artifact discovered in The Bahamas after the commencement of this Act shall vest in the Government from the moment of discovery.”

Mr Goold’s and Spain’s legal successes have largely occurred before the US courts. It is unclear whether they would be able to mount a challenge to Allen Exploration’s Bahamas-based activities in the US, and would instead have to submit to the Bahamian judicial system, although the explorer’s principal is an American citizen.

Some have described the Nuestra Senora de la Maravillas as “the most valuable shipwreck in the Western Hemisphere”. And a March 8, 2021, video clip records Mr Allen saying his company is already recovering “gems” and “pendants” from the ocean floor, although he does not give the precise location.

He said: “I have been looking most of my life for a ship called Nuestra Senora de la Maravillas, otherwise known as Our Lady of Wonder, and I do believe we’re on the debris field floor that’s the stern castle because of these gems that we’re finding and these pendants that we’re finding.”

Mr Allen, as stipulated by his agreement with the Bahamian government, has been working to set up a Grand Bahama-based museum where the artifacts recovered from his underwater exploration will eventually be put on public display. The AMMC is thought to be working with Allen Exploration to document, assess and value what has been recovered from the latter’s exploration efforts.

The Nuestra Senora de la Maravillas was transporting gold, silver and other riches plundered from Spain’s Latin American colonies back to the homeland when it sank on January 4, 1656, near Little Bahama Bank off Grand Bahama after being rammed by one of the other vessels in its nine-strong fleet as they sought to avoid shallow water.

The site, said to have been lying under 30 to 50 feet of shifting sand, was eventually located in 1972 by treasure hunter Richard Marx but his exploration efforts were cut short following a falling-out with the then-Bahamian government.

Subsequently, the Washington Post reported in 1986 that a Memphis businessman with an interest in wreck salvaging, Herbert Humphreys, had located the wreck and begun to recover artifacts. The value of its cargo was pegged at $1.6bn by the article, which said several million dollars’ worth of gems - including a 49.5 carat emerald worth $1m - had already been recovered.

Humphreys’ work was said to have had the blessing of the then-Bahamian government, which received 25 percent of the value of whatever was recovered - a sum consistent with current law. It is unclear when his salvaging stopped, and how much may be left for Allen Exploration to uncover.

Spain’s emergence as a potential player in Bahamian underwater exploration comes as the Government plans to take a “majority” share of the financial rewards. Ryan Pinder, the attorney general, told the Senate during his contribution to the Budget debate that planned legal reforms will “reverse” the present formula whereby the proceeds from underwater treasure salvaging in Bahamian waters are split 75/25 between the explorer and the Government.

The Attorney General subsequently clarified to Tribune Business that the revised split has yet to be determined by the Davis Cabinet. “Cabinet would decide what the actual split will be, but we anticipate that it will be the majority position,” Mr Pinder told this newspaper. “It will be rebalanced in favour of the Government. That goes before the Cabinet. The Cabinet will decide the actual split.”

Wayne Munroe, minister for national security, subsequently invited Allen Exploration to leave The Bahamas if it does not wish to accept the Government’s new terms. However, Mr Concannon said Mr Allen has been in contact with the Davis administration and has a “cordial” relationship with them.

Fred Mitchell, minister for foreign affairs and the public service, posted a series of photos to his Facebook page on March 26, 2022, showing himself visiting Walker’s Cay and describing Mr Allen and his wife, Gigi, as his “hosts”. The photos show he was accompanied by his police sergeant aide, Chris Curry, and Paul Clare Jnr, a foreign service officer.

There is also a photo showing Mr Mitchell having dinner with Mr Allen and Louquisha Russell, who in other posts is described as a PLP stalwart councillor from Grand Cay. However, when contacted by Tribune Business about that meeting, Mr Mitchell declined to discuss its nature.