More than three hundred years have passed since British and Spanish vessels clashed off the northern coast of South America. A fight over treasure sent to the ocean floor there, estimated to be worth billions of dollars, has turned into an epic legal battle that pits a salvage company against lawyers for the Republic of Colombia.
Since the late 1980s, Sea Search Armada has pressed an ownership claim to gold and silver cargo of the Spanish galleon San Jose, arguing in Colombia — and later in U.S. district court in Washington — that it is entitled to at least some of the bounty resting 1,000 feet below the surface.
But that legal effort itself is sinking. Last week, the U.S. Court of Appeals for the D.C. Circuit upheld the dismissal of the Bellevue, Wash., company’s case against Colombia. Citing a three-year statute of limitations, the court said the claims were barred.
Within days, Sea Search announced that it had filed a complaint against Colombia before the Inter-American Commission, the human-rights enforcement arm of the Organization of American States. The complaint alleges that Colombia has unfairly blocked the company from attempting to recover its property — the treasure — from the Caribbean Sea.
Colombia’s lawyers at Arnold & Porter scoffed at the human-rights complaint. "That would simply reflect their increasingly desperate effort to keep their claim alive in any forum they can," said Arnold & Porter partner Paolo Di Rosa, who leads the firm’s international arbitration practice. "But I think its claim is even less likely to prosper at the commission than it was in the U.S. federal courts."
An attorney for Sea Search, James DelSordo of Argus Legal in Manassas, Va., said the company is simply trying to enforce a 2007 Colombian Supreme Court ruling granting Sea Search a 50 percent stake in coins and bullion valued at as much as $17 billion.
"Sea Search Armada is standing by and ready to do salvage operations, but they can’t get investors because the Colombian government has threatened to confiscate the treasure," DelSordo said. "They feel they have a decision in Colombia that the Colombian government should obey."
NO WRITTEN CONTRACT
The dispute dates to 1980, when a Colombian maritime regulatory agency authorized the Glocca Mora Co. to explore for shipwrecks off the country’s coast. That company in 1981 reported finding the remains of the San Jose. It subsequently transferred its rights and 35 percent ownership claim to Sea Search, according to court records. Despite the claim, no written contract was signed between Colombia and Sea Search, and Colombia refused to allow the recovery of the San Jose wreckage. Colombia’s parliament subsequently passed a law that gave the government all rights to the shipwreck.
Sea Search filed suit in Colombian court in 1989, claiming partial ownership to the treasure. Colombia’s highest court in 2007 upheld the company’s 50 percent claim in a ruling in 2007, Sea Search’s lawyers said. Three years later, Sea Search turned to the U.S. courts to seek damages against the Colombian government for its refusal allow the company access to the shipwreck.
The company’s complaint in U.S. District Court for the District of Columbia claimed breach of contract and conversion, both of which carry a three-year statute of limitations.
DelSordo argued the claims were timely because the breach came into existence in July 2007, when Colombia’s top court said the company was entitled to a cut of the treasure. Sea Search’s complaint, he added, was filed within three years of Colombia’s alleged threat of force to block salvage operations in the Caribbean.
U.S. District Judge James Boasberg dismissed the case in October 2011, concluding the statute of limitations had expired on the breach of contract and conversion claims. Boasberg said the Colombian Supreme Court decision didn’t constitute a foreign-money judgment under District of Columbia law. Rather, the judge said, the ruling determined how the San Jose treasure would be divided "if and when it is excavated."
A three-judge D.C. Circuit panel on April 8 concluded that Boasberg got it right. The appeals court called the Colombian high court ruling the "purported but unproduced judgment," a reference to the fact that Sea Search’s lawyers did not disclose the document in the litigation in the trial court.
"On the breach of contract and conversion claims, they are 23 years too late," Di Rosa, lead counsel for Colombia, said after the appellate court ruling.
Arnold & Porter has long represented Colombia on sovereign finance issues. Di Rosa said the firm "participated in a beauty contest" with other firms to win representation of the country in the treasure tiff. The firm has represented Colombia in the dispute since 2010.
Lawyers for Sea Search didn’t immediately say whether they would ask the full D.C. Circuit to rehear the case en banc. The legal fight before the human-rights commission could take years to resolve. María Isabel Rivero, the commission’s spokeswoman, said the agency’s two lawyers can’t timely process the annual receipt of about 2,000 petitions. The initial review, she said, can take up to five years.
Petitions filed with the commission are confidential. DelSordo, however, provided an undated copy that he said Sea Search filed on March 29, days before the D.C. Circuit issued its ruling. The petition seeks recognition that Colombia is violating Sea Search’s property and civil rights. If the commission ultimately agrees with Sea Search, the agency could recommend that Colombia compensate the ocean salvage company.
After more than 18 years of legal proceedings, Sea Search’s petition said, the company’s "ownership of half of the treasures was confirmed in every case of every Colombian constitutional and civil jurisdiction."
Matthew Huisman can be contacted at email@example.com.