The Law of the Sea : A Legal Thriller

by Dave Gerard

  “I—” I stammered. I felt caught flat-footed. This was quickly turning into a repeat of the last time.

  At that moment, the courtroom door swung open, and John Remington walked in. He was wearing a gray suit and holding a large, well-worn briefcase. He was wearing his black cowboy boots, and the heels clicked noticeably on the hardwood floors, drawing everyone’s attention. Remington walked up to the counsel table, put down the briefcase, and stood next to me, waiting as if carved out of wood.

  “Mr. Remington,” said Judge Gleeson, acknowledging him. The Judge looked at him with an expression that I couldn’t read. They were of an age.

  “Your Honor,” Remington replied formally. “I apologize for my late arrival. I had believed this would be a routine issue and didn’t anticipate substantive legal argument.”

  “Well,” said the Judge, gesturing at Bock and his PowerPoint.

  “If you would permit me to shed some additional light on what my colleague has no doubt ably expressed,” he said, gesturing at me. The Judge nodded. “Very well,” he said.

  “David Marcum was killed while within the employ of Rockweiller Industries,” said Remington. “We want to know whether Rockweiller had anything to do with it. Rule 202 allows a plaintiff to ‘investigate a potential claim or suit’ with a pre-suit deposition. That’s what we’re doing here, plain and simple. If there’s something there, we’ll file a lawsuit. If not, we won’t, and we’ll save everyone a lot of time and money.”

  This seemed to make sense to the Judge, who turned to Bock. Bock looked shocked. “Your Honor, the pre-suit plaintiff has not responded to any of our substantive arguments with respect to jurisdiction, venue, undue burden, or the propriety of this suit at all.” Bock’s associates looked suitably outraged as well. The Judge turned back to Remington.

  “Respectfully, I believe that Mr. Bock is missing the point regarding jurisdiction,” Remington responded. “We are not asserting personal jurisdiction. We are asserting jurisdiction in rem.”

  My jaw dropped. In rem was an obscure, ancient basis for jurisdiction. Literally it meant “power against the thing” in Latin. In rem jurisdiction meant that the Court had power over the case because it had power over a physical piece of property. But in rem jurisdiction was the subject of dusty old court cases from the 1800s. You read about them in law school. But I’d never actually seen it used. Bock’s eyes near bulged out of his head.

  Remington continued. “For example, the Texas Supreme Court has upheld jurisdiction on an in rem basis over an oil tanker that was docked in the port of Houston, regardless of the location of the defendant’s headquarters. That reasoning is equally applicable here. With respect to venue, as Your Honor knows, where venue isn’t proper in any other county, it is proper in the county in which the plaintiff resided at the time of the accrual of the cause of action. Texas Civil Practice & Remedies Code section fifteen-point-oh-oh-two-four. And finally, with respect to the undue burden argument, we’re asking for two sets of documents, and six hours with a corporate witness. I don’t think that’s too much to ask in a death case.”

  Zachary Bock was livid, and the associates stared, shocked that someone had actually read their brief. Bock started to say something. But the Judge brushed him off.

  “That makes sense to me,” he said. “Motion granted. The pre-suit deposition is ordered.” He scrawled his signature on the order and handed it to Remington.

  “Your Honor,” said Bock, “I must protest. At a minimum, we require additional time to file an emergency petition for appeal—”

  But the Judge waved him away. “File your appeal if you want, but I doubt you’ll get it. It’s just a pre-suit deposition. Put up a witness, Mr. Bock. Thank you.” Remington thanked the Judge, picked up his briefcase, and walked out.

  I caught up to Remington outside the courthouse.

  “That was amazing!” I said.

  Remington smiled. “That was close.”

  “Close?” I repeated. “That didn’t look close at all.”

  “That’s because I know Judge Gleeson, and I know he didn’t read any of the papers that Bock filed last night. Their brief was actually very good. We’re on thin ice with respect to jurisdiction and the propriety of a pre-suit deposition at all. Which is why I came in late and made it look like no big deal.”

  I was suitably awed. “What do we do now?” I asked.

  “We take the deposition. Not too soon, because I don’t want them to complain about unreasonable notice. But not too late, because I don’t want them to get up to any mischief, like file a writ of mandamus.” A writ of mandamus was where you filed an emergency appeal in the middle of a case instead of at the end. It was rare.

  “They won’t be able to get mandamus on this though, will they?” I asked.

  “Probably not. But I’d rather not give them time to try. Set the deposition for ten days from now. That should be about right. Even if they file something, the court of appeals won’t get to it by then.”

  “Okay. Is there some way I can help you prepare?” I asked Remington.

  “No. I’m not taking the deposition. You are.”

  “Me?” I said, feeling a sudden thrill. Like the TRO hearing, this was exciting, but also daunting. Usually, partners handled important depositions. I hadn’t done many before. And the ones I had done were on smaller, inconsequential matters.

  “Uh, okay,” I said. “Great. Do you… have any thoughts? On topics for the deposition? Or what I should ask?”

  “Whatever you want. That’s the beauty of a deposition. You get six hours, and they have to tell you anything you want to know. Go get ‘em.”

  Anything I wanted to know. I thought of all the questions I had about this case. About David Marcum. About Rockweiller Industries. About the coins. They were all going to be answered, and everything would become clear.

  “Thank you!” I yelled at Remington as he walked off toward some other building nearby. He didn’t turn. But he raised a hand, acknowledging me. Sometimes, the law is a beautiful thing.

  SEVEN

  As Remington predicted, Bock & Co. sought an emergency stay in the court of appeals. They also filed a motion for reconsideration with Judge Gleeson. A motion for reconsideration is where you ask the judge to change his mind. Judges hate motions for reconsideration, and they are usually a waste of time.

  Neither of these methods proved successful. So Rockweiller grudgingly agreed to present Stanley Stuttgardt, corporate representative, for deposition, to answer any and all questions we might have about David Marcum’s death. A few days before the deposition, they coughed up the records we had asked for. I tore them open, eager to see what they would say.

  The first document they sent was David Marcum’s employment file. It turned out that Marcum had worked for Rockweiller as a commercial diver, just like Trevor Thompson had thought. The job description said he did undersea installation and repair work on offshore oil and gas platforms. He only worked there for about five months. He was paid as an independent contractor, like me. But other than his address, social security number, and date of birth, there was little information in the file.

  The strange part of the records, though, were the dates. They said that Marcum had worked for Rockweiller three years ago. I flipped through the rest of the file but didn’t find anything more recent.

  I called Ashley. “Hey, Jack,” she said. “I was just thinking about you.”

  “Jinx,” I said. She laughed, just a little, and I smiled, just a little.

  “What’s up?” she asked.

  “We got the employment records from Rockweiller.”

  “And?”

  “And…they don’t make sense. They say that your brother worked for Rockweiller as a commercial diver, like Trevor thought. But here’s the thing: it was three years ago.”

  “Three years? But I thought he was working for
them when he died.”

  “I thought so too.” But then I wondered. Had they actually said that? Or had we just assumed it?

  “Is there anything more recent?” Ashley asked.

  “No.”

  “What else do the records say?”

  “Not much,” I said, flipping through them. “There’s a job description and some payment information. Some boilerplate HR stuff. He wasn’t an employee, so I guess they didn’t have a full file. They’re basically just tax documents.”

  “Do they say where he was working? Or what project he was on?”

  “No.”

  “How much did he get paid?”

  I scanned through the file. There was a little box that said wages. It read $156,000,000. I stopped and read it again. That couldn’t be right.

  “Hang on,” I muttered. “I must be reading this wrong.”

  “What is it?”

  “It says he made a hundred and fifty-six million dollars. Somehow I don’t think five months of scuba diving would be that lucrative.”

  “What? No.”

  I looked through the rest of the records. But the number repeated in several other places. Then I noticed a little symbol that appeared next to the dollar sign. It said “$COL.”

  I frowned into the phone. “What’s COL?” I asked, mostly to myself. I started to look it up.

  “COL? It stands for Colombian peso. It’s the national currency of Colombia.”

  I stopped. “Colombia? Like the country? How did you know that?”

  “My dad was from Brazil. He had some family in Colombia. I’ve visited many times.”

  “Oh. I didn’t know that.”

  “Yeah. My dad moved to the U.S. when he was twenty-five. He got a green card and then citizenship eventually. I was born here, but we grew up speaking Spanish and Portuguese.”

  “Wow.”

  “Yeah. I come off as a basic white girl, I know.”

  “I see. Okay. So, Colombian peso. Let’s see if that checks out.”

  I pulled out a calculator and steeled myself to do math. I hated math. If I’d been any good at it, I would have been working on Wall Street.

  “The exchange rate is about thirty-eight hundred Colombian pesos to one dollar…that means he made…about forty-one thousand dollars. Does that sound right?”

  “Over five months?” she asked. “That’s pretty good.”

  I looked up the average salary of a commercial scuba diver. It could go up to about a hundred thousand dollars a year. So if Marcum was a good diver, 41,000 dollars for five months’ work was in the ballpark. “It fits,” I said.

  “So he was being paid in Colombian pesos, for a dive job a few years ago,” said Ashley.

  “Right.”

  “Meaning he was working in Colombia.”

  “That would be the logical extrapolation.”

  “Why?”

  I shrugged over the phone. “I guess Rockweiller has operations in Colombia. I don’t know.”

  “But this doesn’t explain what he was doing for them lately, does it? Was that in Colombia too? Why isn’t it listed in the records?”

  “Good questions,” I said. “And I don’t know the answers. But we’re going to ask all about it at the deposition.”

  “I can’t wait.”

  “Me neither.”

  After I hung up with Ashley, I did some research into Rockweiller’s operations. Sure enough, they did oil and gas work in Colombia. They owned offshore natural gas platforms in the Chuchupa gas field, just off the northern coast. Rockweiller had partnered with Colombia’s state-owned company, Ecopetrol, to develop the field. I bet that was where Marcum had worked.

  Interestingly, a press release mentioned a potential new gas field off the coast of Cartagena, Colombia. I searched for more information about it online but found only rumors and innuendo. One newspaper editorial railed against the idea of developing any new gas field near Cartagena, which was one of Colombia’s oldest and most beautiful cities, if in fact a field was there.

  I also read Rockweiller’s 10-K report, which is the annual report that public companies have to file. It was a treasure trove of information about the company’s operations. The 10-K warned of risks that Rockweiller ran in Colombia, including that new oil and gas finds might not pan out.

  The report also warned of more immediate risks. Oil and gas pipelines were a favorite target of guerilla groups. One of the big Colombian pipelines, the 480-mile Caño Limón-Coveñas, had been bombed over one thousand times during its lifetime. The guerillas also took hostages sometimes, and would ransom them back. The report also listed “political risks,” parlance for the propensity of South American governments to nationalize and seize foreign assets in times of economic trouble. An edgy place, to be sure.

  And then, on a lark, and for no apparent reason, I typed in “treasure wreck Colombia” into the search bar. I guess I was bored, and tired of research. I was daydreaming about the Atocha, or Ashley Marcum, or maybe both. I hit enter, idly curious what I would find.

  I blinked few times when I saw the results. Then I refreshed the page, thinking I must have messed up the search. But I hadn’t.

  On the very first page, there were a slew of results about a treasure ship in Colombia. And these weren’t just regular search results, either. They were news reports. All of this was recent, or at least ongoing.

  “‘Holy Grail’ of Spanish Treasure Galleons Found Off Colombia,” one article said. “Shipwreck Worth Billions Discovered Near Cartagena,” proclaimed another. “300-Year-Old Galleon Rumored To Be Worth $17 Billion.”

  My mind reeled. Seventeen billion? I thought. That was impossible.

  I looked up to see if anyone was nearby. Seeing that the coast was clear, I closed my office door and began to read.

  The articles were about a sixty-four-gun Spanish warship named the San Jose that had sunk off the coast of Cartagena, Colombia in 1708. The San Jose had been part of a Spanish fleet that was hauling several years’ worth of taxes and profits from the Spanish colonies to the Crown. The money was to be used to fund the War of the Spanish Succession, a bloody, thirteen-year affair in which France, England, and the Netherlands vied for control of the Spanish throne.

  But the San Jose never made it home. A British Commodore named Charles Wager caught the fleet off the coast of Colombia in a daring raid, which later became known as Wager’s Action. Wager blasted the San Jose to smithereens with cannon, killing most of the six hundred people aboard. The bulk of the fleet escaped and made it back to Spain, including the San Jose’s sister ship, the San Joaquin. From the San Joaquin’s inventory, experts were able to deduce the value of the San Jose.

  The San Jose had been carrying gold, silver, and emeralds worth somewhere between one and seventeen billion, depending on who you asked. I didn’t know how it was valued. Or whether it was true. But all of the articles agreed that it was worth more than any ship that had been found before.

  Unsurprisingly, a legal battle raged over who owned the San Jose. The saga read like a cautionary tale about making deals with foreign governments.

  According to reports, a group of American investors called the Sea Search Armada (SSA) said they found the San Jose in 1981. They said it took them years and millions of dollars to do it. SSA found the wreck at a depth of one kilometer on the Colombian continental shelf. They were able to identify the ship by its unique bronze cannon, which were engraved with dolphins. The wreck was said to lie somewhere near the Rosario islands, just off the coast of Cartagena.

  After it found the wreck, SSA said they cut a deal with the Colombian government. SSA would salvage the wreck in exchange for a third of the treasure. But Colombia reneged on the deal. The Colombian parliament passed a law that retroactively reduced SSA’s share to five percent.

  Not about to take it lying down, SSA sued the
Colombian government the in the Colombian courts. Over the next twenty years, SSA won a series of legal battles and appeals, culminating in a 2007 ruling from the Supreme Court of Colombia in their favor. I thought that would be the end of it.

  But somehow, the Colombian government still refused to give SSA rights to the ship. It seemed like a blatant abuse of power to me. But there wasn’t much you could do if a whole country decided to screw you. SSA had tried to sue Colombia in the U.S. too, but was thrown out because they waited too long to file suit.1 I doubted a U.S. court could have done much about it anyway.

  The case sparked news interest around 2018. But none of the articles answered an important question to me—why did Colombia have any rights to the ship at all? The San Jose was a Spanish warship, not a Colombian one. And the gold and silver it carried came from Bolivia and Peru. Back then, these were colonies of Spain, taken by the Spanish conquistadores in their endless quest for territory and treasure. Colombia was involved only insofar as the ship sank in its waters. But possession is nine-tenths of the law, as they say. Maybe that’s as true today as it was in 1708.

  For the second time, I had found a link between the Marcum case and one of these ancient treasure wrecks. I thought again about the gold coins David Marcum had. There was no way they could be from a ship like that, I told myself. The whole notion was so fanciful it didn’t even deserve a thought. But the idea wouldn’t easily leave my mind.

  I resolved to ask about it at the deposition. It was probably nothing. But like Remington said, I could ask whatever I wanted. So why not satisfy my curiosity?

  Treasure. Oil. Blood. Money. I wondered if this had anything to do with David Marcum. Or was I following a gilded rabbit hole down to nowhere?

  * * *

  1 Sea Search Armada v. Republic of Colombia, 821 F. Supp. 2d 268 (D.D.C. 2011).

  EIGHT

  The deposition was set for the following morning. I had finished my preparation and was reasonably confident that I was ready. I wanted to go home and get some sleep. But first, I had to attend the annual bar association’s Judicial Honors Gala.