The Law of the Sea : A Legal Thriller

by Dave Gerard

  I believe that there is no branch of salvage law so little understood and free from misconception to proctors and laymen alike, as the question pertaining to ownership of distressed, abandoned, or wrecked property at sea.5

  After fifty hours of research, I agreed wholeheartedly. But I did have some idea of what laws the judge might apply, and how the case would come out if he did. I wrote a memo about it. I was proud of it.

  “Okay gang,” I said, handing out copies of my memo and then standing to address the group. “Here’s the deal. There are many different laws about ownership of shipwrecks. The outcome will depend on which law the court chooses to follow.

  “First, the court could apply the law of salvage. That says whoever finds and salvages at least part of a wreck gets title to the rest. Rockweiller made a salvage claim based on the gold coins and bronze lions that they recovered from the Flor de la Mar. If Judge Graves applies the law of salvage, Rockweiller would win.

  “Second, there’s the law of sovereign immunity. That would mean whatever country owned the ship would win. In this case, that’s Portugal, and by extension, its ally Rockweiller. But sovereign immunity is tricky here because of Malaysia. The court might find the ship’s cargo to be the sovereign property of Malacca. Then, Malaysia would win.

  “Third is the law of territorial jurisdiction. All countries have ownership rights over their territorial waters. They extend twelve miles out to sea. The Flor de la Mar sank off the coast of Sumatra, we believe, which is part of Indonesia. Although Indonesia isn’t part of the case—yet—if the court applied the law of territorial jurisdiction, Indonesia would win.

  “Fourth, you’ve got the law of equity. Equity is a fancy word for fairness. Whenever courts talk about equity, they basically do whatever they think is right. If the court did that, maybe it would award the res to Malaysia. Or split the baby. It’s hard to say.

  “Finally, there’s the law of finds. Basically, that’s a fancy way to say ‘finders, keepers.’ The law of finds only applies to property that is unowned or abandoned, though, where no one has stepped forward to claim it. Obviously, that doesn’t apply to the Flor de la Mar. Courts almost never apply the law of finds, and I don’t see it coming into play here.

  “Our claim is derivative of Rockweiller’s. It’s based on contract. Our task is to prove that a contract existed between Rockweiller and Marcum. If we can do that, we may be able to get part ownership of the Flor de la Mar.

  “There you have it,” I said in conclusion. “Any questions?” Everyone stared at me, bewildered. Had I not explained it well?

  “There’s something I don’t understand,” said Harder, raising his hand at Remington. “About sovereign immunity. Didn’t the Eleventh Circuit in the Odyssey Marine case already decide this issue? They said that the country which owned the ship gets title to the wreck and its cargo. And the company that found and salvaged it gets nothing. I get that Judge Graves isn’t bound by Odyssey Marine, because it’s a different court. But isn’t this case basically the same thing? Doesn’t the law dictate the same result?”

  Harder made a good point. The Odyssey Marine case had said that the Spanish warship Nuestra Señora de las Mercedes belonged to Spain, including her cargo of silver, even though it had been found by Odyssey, and the silver came from Peru. Under the law of sovereign immunity, the court said that the ship and her cargo were one and the same. Here, we had the same situation. The Flor de la Mar was a Portuguese warship, found by Rockweiller, which was carrying gold from Malacca. Arguably, it was the same exact scenario, and should come out the same way.

  “Pshaw,” Kruckemeyer said dismissively. “The law? Law’s so wishy washy here that the judge can do whatever the hell he wants. Then he’ll dress it up in fancy language and call it the law. Like the U.S. Supreme Court does. The outcome of this will probably depend on what Graves eats for breakfast.”

  Remington smiled. “Bob makes a good point. As Jack ably explained, the laws governing this situation are so conflicted that there’s no clear answer. That means Judge Graves has a lot of leeway.

  “Some judges act like the law always dictates the result. As if foreordained. But that’s not always true, especially in tough cases. Law isn’t practiced in a vacuum. Judges think about the practical effects of their decisions. Even if they dress them up in the language of law. And every case is unique. For example, this case differs from the Odyssey Marine case in an important way.”

  “What’s that?”

  “Geography.”

  Remington picked up a globe from his desk and set it in front of us. “Where did Odyssey Marine Exploration find the wreck of the Nuestra Señora de las Mercedes?” he asked. His voice had taken on the Socratic tone.

  “A hundred miles off the southern coast of Spain,” Cindy answered.

  “That’s right,” said Remington. He turned the globe toward Spain. “And where did the Mercedes’ silver cargo come from?”

  “Peru.”

  “Right.” Remington turned the globe to South America. “Peru is on the west coast of South America. The silver was shipped overland to Uruguay, and then put on the Mercedes, bound for Spain. Now. How far is Spain from Peru?” We didn’t know that, so he answered it himself. “Six thousand miles.” He showed us the distance, spanning the Atlantic Ocean with his fingertips.

  “Think about it,” Remington said, putting down the globe. “You have two countries claiming rights to the Mercedes. On the one hand, you’ve got Spain, which is a hundred miles away. On the other hand, you’ve got Peru, which is six thousand miles away, across the Atlantic Ocean and an entire continent. Who do you think is going to win?”

  “But why should distance matter to the law?” Cindy asked.

  “Maybe it shouldn’t. But it does. Just like in real estate, location matters. In our case, the Flor de la Mar is lying somewhere in the Strait of Malacca. Right in the backyards of Malaysia and Indonesia. Compare that to Portugal, which is seven thousand miles away. And Judge Graves, who is sitting in an American court, refereeing things from ten thousand miles away. Do you see how that matters?

  “Also, you have to consider how these countries would react to a ruling,” Remington explained. “Would Malaysia and Indonesia just sit there and take it if they lose this case? Would they respect the judgment of a U.S. court? What happens if they don’t? I guarantee these are questions that Judge Graves is thinking about.”

  “I have another question,” said Cindy. “Who’s going to win?” Her blue eyes were guileless, as usual, as she looked at Remington. Kruckemeyer guffawed, and Remington smiled. “That’s the billion-dollar question, isn’t it?” Remington said. “I don’t know who’s going to win, Cindy. But if you want my best guess, here’s what I think: if things stay the way they are now, my money would be on Judge Graves dismissing the case on sovereign immunity, and making no comment on who owns the wreck at all.

  “That would be the most politic result. It would keep America from getting involved with a shipwreck hundreds of years old, and thousands of miles away, which involves difficult legal and moral questions about things that happened a long time ago. It would avoid pissing anyone off, which would be the inevitable result of awarding it to someone. And it would also avoid the tricky situation of whether a U.S. judgment would even be respected in this situation.

  “But on the other hand, Rockweiller and Portugal have a strong case on the law. The Eleventh Circuit went their way in Odyssey Marine, and that is a very persuasive opinion. As Richard recognized, it’s basically the same case, decided under the same law. Binding or not, it will be difficult to disregard.

  “Judge Graves is a wildcard. He has strong beliefs. And he’s not one to be intimidated. But he is also a realist. He will understand these things, and consider the ramifications in his decision. Ultimately, I don’t know what he will do. Nor do I know what will happen on appeal. If the Fifth Circuit is of a different mind
, they will reverse Graves. That’s a whole different ballgame. There’s even the possibility that the U.S. Supreme Court could get involved. I just don’t know.”

  We all sat around and pondered the seemingly endless legal and political conundrums arising from the case. “Finally,” said Remington, “all of that assumes everything stays the way it is now. Which it never does. So we will have to see how the case develops.”

  “Okay. What about us?” Cindy said. “What do we need to do?”

  “We need to focus on our tasks: figure out what happened to David Marcum, figure out how he found the Flor de la Mar, and figure out where he put that contract, if there is one.”

  “What if we don’t find the contract?” Cindy asked.

  “Then we are probably out of luck,” Remington admitted. “At least with respect to the Flor de la Mar. There may be one more thing we can try. But I’d rather not go there.” I opened my mouth to find out what it was, but then Kruckemeyer started talking, and the moment passed. Later, I would wish I had asked.

  * * *

  5 M. Norris, The Law Of Salvage § 157 (1958).

  TWENTY-FOUR

  It was 11 p.m. on a Tuesday night. Cindy, Harder, and I were all crammed into the war room.

  Kruckemeyer said that we needed a war room if we were going to war. So we commandeered a conference room and put a sign on the door that said “Marcum War Room.” We put up some décor as well. Schnizzel loaned us a bust of an ancient galleon. I brought my globe and TV. And Harder tacked up a picture of Alfonso de Albuquerque, that great conquistador, to give the room a more martial flavor. Cindy disapproved, but Harder outranked her, so the picture stayed. I looked up at him from time to time and wondered what he would think of all this. But he only glared down at me imperiously.

  The war room was a mess of documents, laptops, and legal treatises strewn everywhere. Snack wrappers, diet cokes, and cartons of Chinese takeout littered the floor, testaments to our dedication.

  We all looked up as Vijay walked in with a thick stack of papers. “Fourth motion to strike,” he announced, slapping down copies in front of us. We had drafted Vijay to help on the case, because there was so much work to do. We also had several paralegals and assistants working on it full time.

  “Another one?” Cindy groaned. “What are they trying to strike now?”

  “They’re moving to strike our objections to their last motion to strike.”

  “Seriously?”

  “Serious as Quinto’s hemorrhoids.”

  We laughed. At the last court hearing, we had noticed Quinto furiously scratching his behind. I maintained it was a simple case of swamp-ass from the Galveston humidity. Vijay and Harder thought it was more. We had a bet, although I didn’t know how we’d resolve it. Serve interrogatories, maybe.

  “Who wants to take this one?” said Vijay, brandishing the fourth motion to strike. “Harder?”

  “Don’t look at me. I’m handling the latest motion to quash Gunthum’s deposition.”

  “Quash,” Vijay repeated. “What a weird word.”

  “Quash,” I echoed, chewing the word around in my mouth.

  “What does it even mean?” asked Cindy.

  “It’s like squash without the ‘s,’” Vijay said unhelpfully.

  Eventually, after some griping, Harder agreed to handle the fourth motion to strike. “Fine,” he said. “But I want Taco Bell.”

  “You got it,” I said. “Vijay, I think it’s your turn to make a run.” Vijay nodded and began jotting down orders for grilled stuffed waffle chalupas and other exotic fare from the late-night menu. I sat back for a moment to catch my breath.

  Badden & Bock trying to bury us in legal motions. As the big hearing date approached, they had filed a motion to dismiss for lack of subject matter jurisdiction (saying the judge didn’t have authority to hear our case); a motion to dismiss for failure to state a claim (saying that even if he did, we didn’t have a case); a motion for summary judgment (saying that even we had a case, we should lose); five different motions to compel; two motions for sanctions; and a never-ending parade of motions to strike, motions for more definite statement, and objections to everything under the sun.

  People dismissively refer to this stuff as “paperwork.” But each of these motions had legal arguments that could hurt or even kill our case. Some of them were bullshit, but some of them were real. And even the bullshit ones were compelling, with arguments citing a dozen different cases that went their way. Remington thought the sheer amount of motions they were filing was going to piss off Judge Graves. But Graves was thorough, and he would read them all anyway. So we had to put our backs into it.

  I felt outgunned. Frankly, Bock & Co. were better than us. Their writing was better. Their research was stronger. Their work ethic was greater. I couldn’t imagine what it would have been like if Remington hadn’t dragged Malaysia into the case. For all the ammunition that Badden & Bock was throwing at us, they were throwing ten times more at Malaysia. Marcum’s death was important, but it was dwarfed by Malaysia’s claim to the multibillion-dollar wreck.

  As if all that weren’t enough, Indonesia had intervened in the case too. The Flor de la Mar was thought to have sunk off the coast of Sumatra. That would put it squarely in Indonesia’s territorial waters. So Indonesia had filed a claim to the Flor de la Mar as well. Malaysia and Indonesia had a love-hate relationship, I had learned. Sort of like a bad marriage. They usually got along fine, but there were scuffles. This had turned into one of them, and the countries traded increasingly harsh rhetoric as the case wore on. There were even rumors that India and Thailand might enter the fray. The Flor de la Mar wasn’t only carrying the treasures of Malacca. It also carried the plunder from Alfonso de Albuquerque’s conquest of Goa, India, and a treasure belonging to the King of Siam, now Thailand.

  Finally, in a bizarre twist, no less than forty-four individuals had intervened in the case. Each of them claimed to have an interest in the Flor de la Mar. Some said they were descended from the people of Malacca. Others, from the Portuguese sailors. One man even said he was the direct descendent of Alfonso de Albuquerque himself. Each of these intervenors filed papers and hired lawyers and demanded to be heard. I imagined Bock’s fury at having to deal with these small fry. The number of players in this game was becoming mind-boggling.

  Meanwhile, Malaysia and Indonesia were moving mountains to find the Flor de la Mar themselves. They had reportedly mobilized their entire naval and intelligence apparatuses to the task. They were also filing repeated, heavy motions asking Judge Graves to make Rockweiller tell them where the Flor de la Mar was. So far, Graves had refused under the ultrasensitive order. But I wondered what Graves would do if Malaysia or Indonesia found the ship and tried to take it by force. What would happen then?

  The U.S. Department of Justice had also expressed an opinion about the case. They filed an amicus brief urging the court to dismiss the whole thing. The government saw the case as a lose-lose proposition. No matter who won, the losers would hate America. There was no upside. The tone of the amicus brief was extremely respectful, though. They knew Judge Graves’ temperament, and how he felt about interference in his cases. There was no mention of David Marcum in the brief. I guess we didn’t rate the attention of the G-man.

  As tiresome as all this motion practice was, it was the least of our tasks. Judge Graves had set an accelerated scheduling order, and discovery was in full swing. The number of documents being produced was mind-boggling. Terabytes of data flew across file transfer sites every day, and armies of contract reviewers pored through them at a breakneck pace. Although we had a war room, we didn’t have an army, so we made do with targeted keyword searches here and there. Other than that, we didn’t even try to dam the river of electronic information.

  The deposition schedule was like a death march. All of the expert witnesses had to be deposed in the space of a
month. Between all of the historians, archaeologists, numismatists, oceanographers, and others—Schnizzel among them—the timetable was insane. Sometimes there were several depositions in one day. A firm like Badden & Bock could cover that much ground, although I suspected it was taxing even for them. But we couldn’t. We tried our best, and Cindy, Harder, Vijay, and I split up the important ones and attended as many as we could.

  The depositions were savage. The lawyers tried to make mincemeat out of each other’s expert witnesses. Badden & Bock questioned how bad the sack of Malacca really was, and tried to bully the Malaysian experts into admitting that the Sultan of Malacca was basically asking for it. Many of the experts weren’t used to being deposed. They were hoary old historians, used to teaching lectures at Princeton, now getting lit up by rabid litigators who tore apart everything they said. One poor guy even broke down crying.

  I saw Loudamire at some of the depositions. She looked exhausted. Like she was edging the line between sanity and madness. I also saw Cornelius Adipose, one of the associates I’d met at the Judicial Honors Gala. He sneered at me once, but otherwise we had little contact. Lucius Quinto, he of the lacrosse captain vibes, was nowhere to be found. I looked him up online and saw that he had left the firm. So had the other associates I’d met at the gala, Chad Waller and Derek Doniger. I gathered that Zachary Bock was not an easy man to work for. But there were plenty of new Badden & Bock associates to fill the breach, including one tool named Lucas Windsor, who I don’t think ever stopped billing. I didn’t bother to keep track of all their names.

  Every day it seemed there was another hearing in front of Judge Graves over some discovery matter or other. Graves refereed squabbles over everything from what documents had to be produced, to how many depositions could happen in a day, to whether a historian could be deposed again after he was cut short because Bock literally gave him a heart attack.