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  The True Pirates of the Caribbean: the Colombian Judiciary and Galeón San José

March 15th, 2018

by Luis Enrique Cuervo

The history of efforts to salvage Galeón San José is an excellent example of the Judiciary in Colombia. The Spanish flag vessel sunk in 1708 and its wreck is apparently located ten miles west of Cartagena. In 1980, U.S. company Glocca Morra Company Inc. requested to the Colombian Maritime Authority’s a permit to conduct submarine exploration in the Caribbean Sea within specific coordinates. On December 10, 1981 the Colombian Council of State ruled that goods found on the sea bed were not “treasures” lacked a known owner and belonged to a state agency (Instituto Colombiano de Bienestar Familiar). Two years after the permit was issued and the company invested significant time and resources, on March 18, 1982 Glocca declared its finding of the San José’s wreck. Through Resolution 354 of 1982 the National Maritime Authority acknowledged Glocca as the successful finder of the wreck. In March 1983 the Maritime Authority (DIMAR) approved Glocca’s assignment of rights to Sea Search Armada (SSA). The Colombian Navy and SSA could not agree on how to distribute the vessel’s wreck. On January 10, 1984 the Colombian Government, legislating specifically for this case, issued Decree 12 referring to “shipwrecked antiquities” and limiting the rights of the finder of the wreck to 5% of the gross value of the goods recovered. Additionally, the Government decided that the beneficiary of an exploration permit did not hold any special privileges or rights.  

In January 1989, twenty-nine years ago, SSA filed a complaint claiming 100% ownership of what would be recovered from the vessel if found in the exclusive economic zone or 50% if located in the territorial sea. In 1994 the Constitutional Court declared contrary to the Constitution the provisions that defined “shipwreck antiquities” and the rights of their finder. In what today could be considered “record time” (under Colombian standards) on July 6, 1994 a Civil Judge in Barranquilla, concluded that the Civil Law of Finds applied and adjudicated half the treasure to Colombia and half to SSA. SSA filed an appeal. After three years on March 7, 1997 the Civil Tribunal in Barranquilla confirmed the lower Court’s judgment concluding that the law of finds and not the law of salvage applied and SSA’s 50% ownership rights. Writs of certiorari were filed by all parties.

On August 15, 1996 the Council of State issued another “opinion” pursuant to which shipwrecked antiquities were owned by the State, could not be acquired through the law of finds and the 5% salvor’s share was no longer effective. It concluded also that there was no limit as to what an administrative contract could award to recover the wreck.

In August of 1997, a new law was enacted, number 397, to include under the definition of Cultural Submerged State-owned patrimony “shipwrecked antiquities”. The constitutionality of provisions of Law 397 was challenged and the Constitutional Court on June 2003, through judgment C-474 concluded that certain portions of the law were unconstitutional and that Congress and not the Executive should determine the percentage to which a potential salvor of the State’s cultural assets may be entitled.  While the matter was pending before the Supreme Court in 2002 a Peoples Claim was filed with an Administrative Court challenging the validity of the 1982 Maritime Authority’s Resolution. In 2009 the Administrative Court ruled that the Maritime Authority’s 1982 Resolution was opposed to the people’s right to protect the State’s cultural and historic assets.

In 2003 the Council of State in a new “opinion” concluded that administrative acts granting rights to the salvor were no longer valid. Next, ten years after the civil appeal was decided, and eighteen years after the complaint was filed, on July 5, 2007 the Colombian Supreme Court revoked the Tribunal’s judgment. The Supreme Court, in a 246 page decision citing Emperor Hadrian, jurist Paulo, Graciano, Valentiniano, Teodosio, the Napoleon Civil Code and all the Civil Codes in Latin America applied a 1959 law providing the definition of the nation’s “historic and cultural assets” to include “movable monuments” or objects of historic value that exclusively belong to the State such as coins, jewels, medals, and weapons of war. According to this law, private parties may never acquire ownership over the State’s historic and cultural assets. For the Court, goods that have a historic, cultural or artistic value, may not be classified as a “treasure”. The Court ruled against SSA, revoked the declaration of ownership previously issued in its favor and concluded that the country’s historic and cultural patrimony deserved special protection.

In the parallel administrative matter on appeal the Administrative Tribunal in Cundinamarca hundreds of miles away from the coast ruled on May 26, 2011, nine years after the claim was filed, revoked the Administrative Court’s decision concluding that the 1982 DIMAR Resolution was valid because “at that time the notion of administrative morality and protection of the nation’s assets had not been defined as a collective right”, the People’s claim was not the proper mechanism to review these issues  and rights granted to SSA were limited by the Supreme Court’s 2007 ruling.

In 2013 the Colombian Congress issued a law deciding that movable goods in series such as “gold ingots and coins” are not part of the State’s submerged patrimony. The Constitutional Court in 2014 concluded that the provision was unconstitutional. The Colombian President in 2015 declared that Galeon San José is “an asset of all Colombians for all Colombians”, an interesting declaration that differs dramatic from the cultural practice of few Colombians profiting from the assets of all.

Whenever domestic issues would require, Santos would raise the issue of the Galeón San José, even suggesting that its salvage would finance Bogotá’s subway system. In June 2017 Santos announced that a public-private joint venture was in place to rescue Galeón San José. On February 13, 2018 the Council of State issued a 93 page decision confirming the Administrative Tribunal’s 2011 ruling and the special protection of the State’s historic and cultural patrimony.  The Council of State concluded that the 1982 DIMAR Resolution was contrary to collective rights for the protection of the State’s cultural patrimony. This decision ruled that a “treasure” should be distinguished from assets that are part of the State’s cultural and historic patrimony. If what could be recovered from the San José is a “treasure” SSA is entitled to 50%, if it is part of the State’s cultural and historic patrimony it is exclusively owned by the State. Citing the Supreme Court’s judgment it noted that “nothing that could involve a cultural interest may be owned by the plaintiff (SSA), may not be acquired by private parties and may not qualify as treasure”.

Today, 37 years after a U.S. company requested a permit to explore Colombian waters in search of the wreck nothing has been done. All major Colombian Courts have issued rulings on this matter! The life of the “on going file” is short of 30 years old! However, the controversy was not solved. It must be noted that over this period of time someone must be monitoring the dockets at all times as any day the courts could surprise litigants with a ruling and the three days to file a motion could expire.

Some hard facts should be highlighted. Santos will soon leave the country and other deals will allow him to live comfortably in London from where he may learn more about Admiral Charles Wagner. Bogotá still has no subway but plans to build it are underway along with the plans to salvage the wreck of the San José! The Colombian Maritime Authorities and the Minister of Defense ignore the specific location of the San José’s wreck. Such authorities differ with the Ministry of Culture regarding the scope of the State’s cultural assets! Colombian courts question whether these issues are under the jurisdiction of administrative or civil courts. The Supreme Court ruled! Its decision is cumbersome and unclear, if what is recovered has historic value it only belongs to the State, if it qualifies as a treasure SSA owns 50%. It is unclear what may be the rights of an effective salvor. A civil action is truly the endeavor of a lifetime. Parallels could be found between Charles Wagner and Santos, the former sunk the San José, the later sunk Colombia. The good news for legal counsel is that if ever a golden coin is recovered the legal battle will continue for years to come!

The case illustrates how the “rule of law” is perceived in Colombia. Under its domestic culture it is “normal” for a case to last more than thirty years, involve courts of multiple jurisdictions, and end up deciding nothing. Ultimately, after years of litigation and waste of time rights of ownership of the San Jose’s wreck and potential rights of salvage remain unclear. Colombia’s problems won’t go away and the next president can always remember that allegedly a Spanish Galeon full of gold sunk somewhere near Cartagena.

The intricacies, inconsistencies, inefficiency, and distance with reality and practicality that dominate the day-to-day work of Colombian Courts make you wonder who the true pirates of the Caribbean are.




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