The Law of the Sea : A Legal Thriller

by Dave Gerard

  Schnizzel chuckled. “The Atocha? Unlikely. That was a once-in-a-century find. You don’t see wrecks like that every day. No, no.”

  “But there are wrecks of that magnitude still out there?” I persisted.

  “Certainly. There are many of them. You’ve got the Merchant Royal, for example,” he said, ticking it off on his fingers. “That was a British ship that sank in 1641 with a hundred thousand pounds of gold on board. There’s the Cinco Chagas. A Portuguese carrack that sank in 1594 after a naval battle with the British. It was rumored to have cargo worth a billion in diamonds and gems. There’s La Trinite. Part of the lost French fleet of 1565. And those are just a handful. There are many more. But the odds of finding any one of them is low.”

  “Where are most of these wrecks discovered?”

  “You can find them all over the world. But perhaps the most famous ones appear—or should I say disappeared—on the routes that Spain and Portugal used during their golden age, centuries ago.”

  “What about near Cartagena, Colombia?” I asked, taking a stab in the dark.

  “Oh, sure. Cartagena was a big port for the Spanish Main in its heyday. The English privateer Sir Francis Drake, better known to the Spanish as El Draque, sacked Cartagena twice, including in 1586, when he lit the city on fire for a month until the inhabitants paid him a king’s ransom to leave.”

  I raised my eyebrows. Talk about scorched earth. I could almost hear Kruckemeyer chuckling in my head. “El Draque, eh?” he would muse. “Could use a fellow with that kind of spirit at this law firm.”

  “What do you know about the San Jose?” I asked.

  “Ha! You know more about this than you let on, don’t you? The San Jose! What a find. What do you want to know?”

  “Well,” I said carefully, “Rockweiller has offices in Cartagena.”

  “Ah. You’re wondering if Rockweiller has some connection to the San Jose, or to some other wreck in the area.”

  “I know it’s thin, but…yes.”

  Schnizzel scratched his head. “I haven’t heard of any new finds near Cartagena lately. And I don’t see how Rockweiller could be involved with the San Jose. It’s already been found. There’s a legal dispute about it, I know. I heard that Colombia was trying to hire a new company to salvage it. Maybe it’s Rockweiller? That’s the only thing I can think of.”

  Rockweiller hired to salvage the wreck? That was an interesting idea. It would fit with the secrecy of the whole thing. If Marcum had taken the coins from the San Jose…what would Rockweiller have done?

  “To be candid, though,” Schnizzel said, “it seems unlikely. Occam’s razor and whatnot.”

  I must have looked puzzled, so he explained. “Occam’s razor is the principle that the simplest explanation for something is usually the true one. Rockweiller is an oil & gas company. Ergo, if they found something, it’s more likely to be oil or gas than some treasure wreck.” I nodded, thinking of the rumors I’d read about a new gas field near Cartagena.

  “And even if it was a treasure ship, they don’t always turn out the way you think,” he cautioned. “Take the Tobermory Galleon, for instance. That was a Spanish ship that sank off the west coast of Scotland centuries ago. There was rumored to be fabled wealth aboard. Over the centuries, various Earls of Argyll tried to raise the wreck, and fought with the Stuart kings over the salvage rights. But if one of these earls had read the records in the Spanish archives, they would have known that there never was any treasure on the ship in the first place.”

  Schnizzel stopped to check his watch, and then jumped to his feet when he saw the time. “I’ve got to get to my next class. Come on, I’ll walk you out.” He grabbed his bookbag and we headed out the door.

  Out on the quad, the day was sunny, and the air was rich with the smell of grass and flowers. We strolled along a bright stone walkway, interspersed here and there with shade from the trees.

  “I have to ask,” I said. “What are you doing in San Marcos? It seems a rather…landlocked destination, considering your interests.”

  “Ha! True. There’s not much maritime archaeology to be found in the San Marcos River. That’s a bit of a story,” Schnizzel said.

  Schnizzel had been born and raised in New York City. He got his computer science degree at Columbia University, and taught there for ten years. From there, he moved to Miami, planning to live and teach by the beach. There he met another professor. She was one of those big-haired blondes from Texas. They fell in love and were soon married. When she got an offer to teach back in her hometown of San Marcos, Schnizzel followed. Unfortunately, soon after they arrived in Texas, she had started an affair with the local football coach. Now they were getting divorced.

  “The fucking football coach,” Schnizzel muttered, clearly still bitter about it. “That’s what happens when you move to Texas.”

  “I’m sorry to hear that,” I said, genuinely feeling for the guy.

  “Bah,” he said, waving his hand. “Ancient history. Anyway, I kind of like it here. It’s a nice change from the bustle of Miami and New York. I may just stick around after I finish my term. Well. I’m glad you came to see me. Let me know what else I can do to help. And if you get your hands on those coins, bring them to me! I’ll tell you where they’re from.”

  I promised to do that, and we parted ways.

  ELEVEN

  It was a few months into discovery that we got our first big break in the case. The answer came in the form of paper rather than gold.

  In response to our discovery requests, Badden & Bock document dumped us. The document dump is a time-honored tradition in civil litigation. You give the other side so many documents that they can’t tell the good from the garbage. It used to be that lawyers would dump rooms full of boxes on each other, and make the other side spend days or weeks reviewing paper files. Now that everything was electronic, it was worse.

  In the old days, the name of the game was trial by ambush. Old lawyers still reminisce fondly about whipping out a red-hot document and making an unsuspecting witness shit himself right there on the stand. No more. In the 1980s, the rules of civil procedure were amended to allow for more discovery. Now, everyone knows everything that anyone is going to say before they say it. In theory, this makes trials more fair. In practice, it also makes them more expensive. You wouldn’t believe how many documents there are in the average case, and how much it costs to review and fight about them.

  When Badden & Bock finally sent us the documents we asked for, I opened the index, eager to see what they said. I pulled up the file count.

  It said 1.4 million.

  I checked and then re-checked it to make sure I wasn’t seeing things. Then I slumped back in my chair, dismayed. How Rockweiller had gotten to 1.4 million documents about David Marcum was beyond me. I doubted the guy had two emails to rub together. But we had asked for all documents, and I guess we got them.

  Initially, I was excited about the sandbox of material they had given us. I was sure there must be something useful in there. So Cindy, Harder, and I searched through the documents over the next couple of days. We looked for key terms like Marcum, death, oil rig, scuba diving, coins, gold, COL, Gunthum, and others.

  But soon enough, it became clear that there was almost nothing useful about David Marcum in them. Most of the documents were irrelevant emails, reports, newsletters, and the other day-to-day electronic correspondence of a corporation. The documents we wanted were either hidden away among the garbage, or not there at all. We wouldn’t know which until we started going through them the hard way.

  So we put together a document review plan. Or rather, Harder did. He made a show of “creating protocols” and “leveraging technology” to maximize efficiency. These buzzwords might have impressed a luddite like Kruckemeyer. But in reality, they didn’t mean much. After all the “leveraging” was said and done, we were still left with about half a
million documents that someone needed to eyeball.

  So Cindy and I sat in front of our computers for eight, ten, sometimes twelve hours a day, clicking through the documents one by one, the blue light of the monitors burning into our eyes, and the cheap blaze of a fluorescent sun shining down from above, day after day.

  Early on, Harder tried to micromanage us. He sent about ten emails a day trying to get “buy-in” from “the team” (i.e., Cindy and me). We ignored him, and pretty soon he joined us in the review. He didn’t have much else to do anyway. Our enmity faded amid the stultifying monotony of the documents.

  And then, finally, Cindy caught our first break.

  I was experimenting with some yellow glasses to filter out the harsh blue light of the monitors when she called. The glasses worked, but also made me look like an idiot. Consumed with this existential tension between form and function, my review rate plummeted, because I kept looking up to make sure that no one saw me.

  I took off the glasses as I picked up the phone. “You know you can just come down here. You’re like three offices away,” I told her.

  “I think I found something,” she said, ignoring my jibe. I heard an undercurrent of excitement in her voice for the first time in what felt like months.

  “What is it?”

  “I was looking through Rockweiller’s insurance certificates,” Cindy explained. “You remember how we asked for those?”

  “Yeah.” Insurance was important because it would tell us how much coverage Rockweiller had in case of an accident. That often ended up being the most that a company would pay to settle a case. If an insurance company was eating it all anyway, it was no skin off their back. “What did you find?” I asked.

  “Well, they dumped about two hundred different policies on us. For every line of business they have. It took me a while, but I read through all of them.”

  “You read through two hundred different insurance policies?” I asked incredulously. Insurance policies were among the most boring types of documents in existence.

  “It was only a couple thousand pages. Excluding the appendices. Anyway, the important one is a commercial general liability policy for ten million dollars.”

  “A fat sum.”

  “Yeah. The policy names some additional insureds, including David Marcum and Lloyd Gunthum.”

  I frowned. “Lloyd Gunthum. Why does that name sound familiar?”

  “Because he was on the privilege log.”

  That jolted my memory. Gunthum was one of the people on the privileged communications at Rockweiller. Including the death memo. “Right.”

  “Now, here’s where it gets interesting,” Cindy said. “You see, it’s not a Rockweiller insurance policy.”

  “What do you mean?” I said, puzzled.

  “It’s owned by another company. Called Excel Resources.”

  “Never heard of them.”

  “Neither had I. But I looked them up. Guess who owns a majority stake?”

  “Who?”

  “Rockweiller Industries. I found it on their ten-K. You gave me the idea when you looked up that Colombia stuff.”

  “Ninja.”

  “Thanks. Here’s the kicker: I think Marcum was actually working for Excel Resources, not Rockweiller Industries, when he disappeared. That would explain why we haven’t seen any documents about him.”

  I sat bolt upright in my chair. “Of course,” I said, thinking about it. “If he wasn’t technically working for Rockweiller, that would explain why they have no recent employment records.”

  “Exactly. To test my theory, I ran searches for Excel Resources. And it worked. I’m finally finding stuff about David Marcum.”

  “What sort of stuff? And hang on. Why didn’t we find these when we searched for his name? They should have come up.”

  “I have a theory about that too. A lot of the Excel Resources documents were hand-scanned in. From paper copies. They didn’t OCR well. I think that’s why our searches didn’t pick them up.”

  OCR stood for Optical Character Recognition. That was what scanned text to make it computer readable. It wasn’t always perfect, especially when documents were badly scanned. I was immediately suspicious. I wouldn’t have put it past Bock & Co. to do that intentionally. “I just started going through these,” said Cindy. “But they look promising.”

  “Brilliant! You’re amazing, Cindy!”

  “I try,” she said, and I could hear her beaming into the phone.

  Sure enough, Cindy’s insight yielded fruit, and we slowly started to piece together what David Marcum had been doing for Rockweiller and Excel Resources.

  Marcum had worked for Excel in the months leading up to his disappearance, as Cindy had suspected. He was a diver, and he was paid as an independent contractor. In U.S. dollars this time, not Colombian pesos. The records said nothing about where he worked.

  But we did learn that he was working on a ship. Marcum’s name appeared on things like ship’s logs, food requisitions, and inspection checklists. From this, we were able glean that he was onboard a ship called the Excelsior, a seventy-meter vessel fitted for salvage and recovery operations. The Excelsior carried enough food, water, and supplies to sustain a crew for a journey of several weeks.

  Lloyd Gunthum was the captain of the ship—the same man who appeared on the privilege log. Gunthum owned a large stake in Excel Resources, in partnership with Rockweiller. The crew of the Excelsior were: Thomas Barber, Michelle Kauller, Richard Layes, Jeremy Riker, Carl Ruthers, Jason Dubino, and David Marcum. They were sailors, divers, and equipment operators. We had their pictures and personnel files, and I scrutinized their faces, wondering if any of them knew what happened to David Marcum.

  The Excelsior carried scuba equipment for everyone aboard, including wetsuits, masks, fins, weights, tanks, and an air compressor. The ship also had a remotely operated vehicle (ROV) to reach depths that divers could not plumb. Finally, it carried a number of search tools, including a magnetometer and a side-scan sonar. I knew from Schnizzel that these were the tools that treasure hunters used to hunt deep-sea wrecks. But I also knew they were used in modern-day salvage as well, so it might not mean anything. Still, my interest was piqued.

  Of Excel Resources itself, we didn’t learn much. We knew it was a deep-sea search and recovery outfit, but that was about it. Lloyd Gunthum was a mystery too. He didn’t have a social media presence, and we couldn’t find anything about him online.

  Finally, try as we might, we couldn’t find out anything about what the Excelsior was doing, where it had been, or how David Marcum had died. That information was all missing or redacted as “ultrasensitive.” Badden & Bock shouldn’t have been able to do that. But unsurprisingly, they had.

  I kept waiting for Bock & Co. to slip up, like they had with the privilege log. Out of 1.4 million documents, I figured someone must have screwed up somewhere, and we would get a glimpse of what was really going on. But there was no chink in Badden & Bock’s armor this time, and the truth remained as elusive as ever.

  At 10 a.m. on Friday, I grabbed a couple of heavy binders and lugged them over to Kruckemeyer’s office.

  We had set up a weekly meeting to keep track of the case. Remington hated meetings, and rarely attended. So it was usually just Kruckemeyer, Cindy, Harder, and me. We would sit down, talk about the documents, strategize, and shoot the shit.

  The door to Kruckemeyer’s office was closed when I arrived. I sat down outside. Inside, I spied someone through the glass door. It was David Wurlheiser. Wurlheiser was talking animatedly, and Kruckemeyer seemed to be listening and nodding reluctantly. Eventually, Wurlheiser got up and stormed out. He didn’t bother to look at me, but stalked off and disappeared into the elevator. I walked into Kruckemeyer’s office. Kruckemeyer motioned me to sit down. He looked tired.

  “What was that all about?” I asked, jerking my thumb towar
d Wurlheiser.

  Kruckemeyer sighed and pinched the bridge of his nose. “David is on me about the conflict again. We got a letter from Rockweiller Industries, demanding that we recuse. On account of the prior work. It’s bullshit. But David is named in the letter, so he’s feeling it. He’s a contracts guy, not a trial lawyer. He’s not used to this kind of pressure.”

  Kruckemeyer slid the letter across the desk. It was long. I skimmed it and saw allegations like breach of fiduciary duty, misuse of confidential information, and abrogation of the lawyer-client privilege.

  “We’re not going to recuse, are we?” I asked, concerned.

  “Pshhaw. Recuse? Me?” Kruckemeyer scoffed. “You know I’m a stone-cold litigator, Jack. My panties are made of sterner stuff than David’s. No. We’ll recuse once we stick it to them, and not a day before. Don’t you worry about that. Now. On to other stuff. How’s my Mongolian barbeque case? Is it heating up?” He chuckled. It was about the fifth time he’d made that joke. But I laughed dutifully and described the skirmishing between myself and H. Hubert Thung, which he always enjoyed.

  “Where are Cindy and Harder?” I asked, checking my watch. It was ten past the hour. They were usually here by now.

  “They’re in some ethics seminar,” he said dismissively.

  Lawyers had to do a certain amount of Continuing Legal Education (CLEs) every year. These were seminars where you learned about a variety of legal topics. Most of them were useless. But it didn’t matter, because no one paid attention anyway. At best, CLEs were an opportunity to socialize with lawyers you hadn’t seen in a while. But after the pandemic, a lot of the CLEs went virtual. So even that benefit was gone. I guessed that about one in ten people actively listened to a CLE online, as opposed to having it on in the background whilst shopping on Amazon.

  The hardest CLEs to find were the ethics ones, of which you had to do one or two every year. These taught you the tough stuff, like don’t steal from your client, or lie to the judge, or be an asshole. Most lawyers were pretty good about the first two. I had done the ethics seminar that Cindy and Harder were in. Total snooze fest. It was about conflicts, actually. I had picked up a few nuggets about imputed conflicts and firm associations. So that was something.