The Law of the Sea : A Legal Thriller

by Dave Gerard

  I ran after him and caught him in the hallway. “Strong move,” I said as we walked down the hall, in awe of what he had done.

  “Yes. But I was bluffing.”

  My face registered surprise. “But aren’t you lead counsel?”

  “I am. But if the partners force a withdrawal, we’ll have to recuse. Wurlheiser is right about the bylaws. And I won’t go against the partners like that, no matter how strongly I feel. I’m not going to air the firm’s dirty laundry in public.” He smiled wearily. “But they don’t know that. Which will buy us some time.”

  “Time to do what?”

  “Time to win the goddamn case, Jack.”

  TWENTY-SIX

  The trial in Galveston, Texas was the legal event of the year. Maybe ever.

  The old courtroom was packed wall-to-wall with lawyers, reporters, and others who had come to see the action. The lobby had turned into an overflow room, jammed with people trying to get in. Judge Graves had put up a big screen there to broadcast the proceedings.

  But all of that was dwarfed by the size of the crowd outside. Thousands of people thronged the courthouse steps, chanting and waving signs like “Stop the Slay,” “Finders Keepers,” “America First,” or “Albuquerque ó Grande,” depending on their persuasion. There was even a sign that said, “Save the Whales.” Vintage.

  The Flor de la Mar case had become a lightning rod for criticism from every angle. Anti-corporate groups called Rockweiller a gang of capitalist pigs trying to profit from the heritage of nations. Human rights activists decried Portugal and the West’s cruel history of murder, pillage, and slavery in their former colonies. Malaysia had become something of a cause célèbre, and seemed to have the moral high ground. For now. But corruption allegations swirled, and ordinary Malaysians asked where the money would go. The 1MDB scandal, in which the Malaysian prime minister had been accused of funneling hundreds of millions of dollars in state funds into his personal bank account, was still fresh, and the people remembered the way their money had been squandered.

  We arrived at the courthouse dressed to the nines and ready for day one. The whole team was there. Remington, Kruckemeyer, Ashley, Schnizzel, Harder, Cindy, Vijay, Lyle, and me. Our paralegals and support staff were there too.

  Behind the scenes, the HH&K partners bordered on a state of open war over the Marcum case. Half of the partners wanted us to recuse immediately, even if it meant Remington leaving the firm, as he had threatened to do. Wurlheiser was trying to force another vote, and was stirring up the partnership against us. Despite some misgivings, Kruckemeyer had come down firmly on our side. He was fighting a rearguard action to block any further votes. But there was only so long he could delay, and the pressure mounted every day.

  I glanced over at Harder as we walked toward the courthouse door. He was subdued, as he had been for the last few weeks. The firm hadn’t fired him. He hadn’t intentionally done anything wrong, and Remington and Kruckemeyer spoke up for him. Ashley and I had forgiven him. But he hadn’t forgiven himself. He had stayed apart lately, doing what work he was given and not talking much. I was glad he was with us, though. We needed all the help we could get.

  The U.S. Marshals were at the courthouse in force. They had pulled extra personnel from Houston and Dallas for the trial. I waved to the lead Marshal as we arrived. I had gotten to know him during the discovery hearings. His name was Butch. An aptronym if I ever heard one. With his shaved head and huge bulk, he reminded me of no one so much as The Dominator, the star of my beloved TV show. Butch nodded to me and lifted a black cordon. He escorted us inside like VIPs.

  Inside the courtroom, Judge Graves sat on his high bench, surveying the multitudes before him. He was dressed in his best black robes and seemed to be enjoying the situation immensely.

  The case was going to be a bench trial. That meant that Judge Graves would hear the case and make the ultimate decision himself. There were no jury trials in admiralty, I had learned.

  The Seventh Amendment guarantees a right to trial by jury. But not for every kind of case. The way courts decided whether a particular case gets a jury depends on whether that type of case got a jury when the Seventh Amendment was adopted in 1791. If it did, you got your jury. If not, you didn’t. Admiralty cases didn’t get jury trials in 1791. So we wouldn’t get one today. This didn’t make a whole lot of sense. But it was consistent, at least.

  Graves banged his gavel vigorously as the hour approached nine. It had no effect on the mob, and people continued talking unabated. Graves’ bushy eyebrows drew down in a frown. I suppressed a grin, knowing what was coming.

  There was a particularly garrulous lawyer standing up front, just a few yards from Judge Graves. One of the intervenors’ lawyers. He was arguing animatedly with his associate and paying no attention to Judge Graves’ calls for order. Graves beckoned over one of the Marshals.

  “Seize him,” ordered Graves. The lawyer looked up in surprise as the Marshal approached. He put his hands up. “Okay, okay,” I heard him mutter as he sat down. “Yeesh. Relax, guy.”

  But the Marshal jerked the lawyer to his feet, turned him around, and cuffed him. The lawyer started yelling about due process and his rights under the First, Sixth, and Fourteenth Amendments to the Constitution. “You can’t do this!” he shouted. “You can’t just arrest me in the courtroom. I demand a stay of this order until I can appeal!”

  “Denied,” said Graves. “Good luck with your appeal. The Fifth Circuit is sitting in New Orleans this week. Address any postage thereabouts.” The Marshal dragged him away. This had the effect of finally quieting the courtroom.

  “That’s better,” said Graves, his good humor restored. “Now, I believe we are ready to begin.

  “Ladies and gentlemen,” he said in a sonorous voice. “I welcome you to the United States District Court for the Southern District of Texas, Galveston Division. Our little town is pleased to be the site of such a great international event. For those of you who have not been here before, I would recommend visiting the pier for lunch. Try the Gulf oysters. They are excellent.”

  Judge Graves turned his attention to the attorneys. “To the litigants: I appreciate the gravity of the case to you all. I recognize that I am an American judge sitting in a small beach town in Texas, being asked to rule on events that happened thousands of miles away, and hundreds of years ago, in a time and place far remote from our own.

  “I also recognize that a number of sovereign nations are here today. Be assured that I have the utmost respect for you and your people. I will hear your arguments with the keenest of attentions. But I also have respect for the rights of individuals and companies to challenge such great powers, which is the foundation of our republic. Finally, I have the greatest respect for the law itself, and you can be assured I will follow it in my rulings.”

  Graves smiled broadly. “As those of you who know me can attest, I am a cantankerous old judge. I hope you will indulge me if I make the occasional jab or witticism. But notwithstanding my at-times sarcastic commentary, you can be assured that I and my staff will give your presentations our fullest attention, and after hearing the arguments, the evidence, and the law, I will come to the best conclusion that I can. Thank you.”

  It was a good speech. I was impressed. The Portuguese, Malaysian, and Indonesian contingents looked pleasantly surprised. The way the media covered the case, they might have expected a provincial old man who spoke in tongues and didn’t even know where Malaysia was. But instead, they found an attentive, if iconoclastic, judge who promised to hear them fairly.

  “We will now hear opening statements,” Graves declared. “Would Malaysia like to begin?” There was a shuffle up front as the attorney for Malaysia stepped forward. His name was Aquil Jafaar.

  Jafaar was a small, unassuming man. He wore a scruffy suit that didn’t fit him very well. He looked more like an aged schoolteacher than a lawyer. In fact, I
thought he looked like a villager who might have lived in the ancient city of Malacca. Jafaar had a patient smile on his face and radiated good humor. There was a marked contrast between him and the high-powered lawyers at Badden & Bock.

  But this was all for show. In reality, Jafaar was a well-known trial lawyer in Washington D.C. He was Malaysian-born and educated at Harvard Law. He graduated near the top of his class, and went on to clerk for the U.S. Supreme Court. Now, he was a sought-after litigator in big international cases. Jafaar had represented Fortune 500 companies and sovereigns like Saudi Arabia and China in the U.S. courts. Beneath his humble manner, Jafaar was a killer, and his simple charm had pulled the wool over some bad things his clients had done.

  So far, our relations with Jafaar had been cordial. Malaysia was unhappy that we had dragged them into the case. But they were also the biggest winners from the transfer to Texas. Frankly, I thought they ought to thank us. In any case, Remington said we ought to watch Jafaar as carefully as we did Bock.

  The courtroom went quiet as Jafaar approached the podium. “Good morning, Judge,” he said with a beatific smile. “I am Aquil Jafaar. I represent the good nation of Malaysia. If you will indulge me, I would like to begin with a small anecdote about the ancient city of Malacca. I hope this will give you a flavor of how our city came to be.”

  Judge Graves nodded and bid him continue. “Malacca was founded in 1400 A.D. by a Sumatran prince named Parameswara,” said Jafaar. “According to our legends, Parameswara was out hunting one day, and stopped to rest in the shade of a Melaka tree. There, Parameswara saw a small white animal called a mouse-deer. His hunting dog went after it, and Parameswara thought that would be the end of the little creature. But the mouse-deer kicked the dog in the nose, sending it tumbling into the river, and escaped.

  “Impressed by the animal’s courage, Parameswara said, ‘It is best that we establish a kingdom here; even the mouse-deer is formidable.’ And so he did, and named the city after the Melaka tree that had given him shade.” Jafaar smiled. “Of course, this is most likely a fable. But it is an old tale, and I hope you do not mind me relating it.”

  “Not at all,” said Graves, bemused.

  “During the century that followed,” Jafaar continued, “Malacca became a great trading port, and the richest city in all Asia. It had a fine natural harbor and commanded the Strait that bears its name. Malacca means ‘to meet,’ and indeed the city became the meeting point between traders of the East and the West.”

  Jafaar flicked on the courtroom’s screen, displaying a painting of an old, exotic city by the sea. “Every sort of silk and spice could be found in ancient Malacca,” he told us. “Merchants would trade porcelain from China, sandalwood from Timor, fragrant resins from Saudi Arabia, and metals, stones, and artifacts of every kind. The Sultans of Malacca, the first of whom was Parameswara, presided over a thriving, cosmopolitan city in which Malays, Arabs, Persians, and Chinese all lived in peace together. This was the golden age of Malacca, which is remembered still.

  “This state of affairs lasted until the early sixteenth century. Then, Malacca was discovered by the Portuguese.” The screen flashed to another picture, of the Portuguese arriving at the city. It was notably darker. “Seeing its riches, the Portuguese craved dominion over Malacca, as they did all Asia. In 1511, a Portuguese Admiral named Alfonso de Albuquerque arrived at Malacca with a fleet. He demanded an extraordinary tribute from the Sultan. When the Sultan refused, Albuquerque attacked the city.”

  Jafaar’s expression sobered. “The Portuguese bombarded the city from dawn to dusk with cannon, setting it ablaze. Then they made their assault. Thousands perished, and the city burned. No quarter was given. The people were mercilessly put to death in the streets. In his own memoirs, Albuquerque writes that of the Moors, one ethnic group in Malacca, ‘women and children, there died by the sword an infinite number, for no quarter was given to any of them.’

  “After subduing the city, the Portuguese stole everything they could carry, and stowed it in their great ships. They took the treasures that belonged to the Sultan of Malacca, and the gold from the wealthiest merchants. They also took hundreds of young Malay boys and girls, ripping them from the arms of their mothers and fathers, to become slaves in a faraway land. These youths never made it to Portugal. They perished, to a boy and girl, during the sinking of the Flor de la Mar.

  “Your Honor,” Jafaar said somberly, “the Portuguese burned down the city of Malacca and slaughtered its people. They took its wealth and its sons and daughters for their own, on the pirate ship known as the Flor de la Mar. These treasures rightly belong to the people of Malacca, which is today part of the proud nation of Malaysia. I humbly request that the Court honor their memory, vindicate their rights, and grant Malaysia title to the treasures of the Flor de la Mar.” There was a resounding silence in the courtroom as Jafaar finished his tale. Judge Graves’ expression was unreadable.

  After that, Jafaar launched into his legal argument. It was impressive. He talked about sovereign immunity, and pointed to cases that went his way. He distinguished the Odyssey Marine case, explaining why it was different and the court should not follow it. In all, he talked for about an hour before thanking Judge Graves and sitting down.

  After Jafaar, it was Bock’s turn. I had watched him during Jafaar’s presentation. He sat like a racehorse, barely able to contain himself from bursting out the gate. When his moment came, he sprung up from his seat and buttoned the jacket of his best dark suit and tie. Then he stood proudly and faced Judge Graves.

  Bock had a difficult road to walk. He didn’t have the moral high ground like Malaysia did. Rockweiller’s claim to the Flor de la Mar hinged on Portugal. And Portugal had sacked the city of Malacca and taken its treasures for her own. I saw the lawyer for Portugal watching from the sidelines. He was an older man with a bushy gray moustache. He deferred to Bock on everything, and I could never remember his name.

  Kruckemeyer once told me that if you don’t have the facts, you hammer on the law. And that’s what Bock did. “Good morning, Your Honor,” Bock began. “I stand before you as the representative of Rockweiller Industries, a great American company. I also stand before you on behalf of the nation of Portugal, a proud country with maritime roots over a thousand years old.

  “Let me first tell you what we are not here to do.” Bock clasped his hands behind his back and paced across the courtroom. “We not here to re-fight old wars. We are not here to air old grievances. We are not here to judge who was right and who was wrong centuries past.

  “Instead, this case presents a straightforward question of law: does sovereign immunity apply to a Portuguese warship that sank five hundred years ago? The answer is yes.”

  Bock drew his remote control like a pistol and switched on his presentation. He displayed a brilliant picture of the Flor de la Mar. The ship was beautiful, with high forecastles and blooming white sails full of the wind.

  “Last year, Rockweiller Industries discovered the wreck of an ancient Portuguese carrack deep in the Indian Ocean. The Flor de la Mar. The vessel was the flagship of Admiral Alfonso de Albuquerque, one of the great Portuguese navigators of the day. At great cost, the men and women of Rockweiller Industries located this wreck and salvaged it.

  “Under the law of sovereign immunity, the Flor de la Mar rightly belongs to Portugal, the nation that owned it. Sometimes, disputes arise between the owner and the finder of an ancient vessel. But not here. There is no daylight between Rockweiller and Portugal in this case. They have joined together to bring the Flor de la Mar back to the world. Together, they intend to honor Portugal’s right to its national heritage, and reward Rockweiller’s hard work and ingenuity in recovering the vessel. Today, I ask that the Court honor those rights.”

  Bock then launched into his own legal argument, relying heavily on the Odyssey Marine case, and citing other cases that had followed it. Bock used up about an hour as well b
efore sitting down.

  After these presentations, Judge Graves banged his gavel and we adjourned for lunch. There was a loud buzz as everyone began talking at once. People filed out of the courtroom, no doubt making for the pier and the bountiful lunch options that were said to be available there.

  We made our way through the crowd and stepped outside. The day was muggy and warm. We left the courthouse and walked the mile to our hotel. On the way, we coalesced into pairs and talked excitedly about the hearing; how the arguments had gone, what Judge Graves was thinking, who wore the best tie, and all of the important things. The tension of the conflict lawsuit had faded for now, amid the excitement of trial.

  We had booked rooms at a Galveston hotel for the duration of the trial. There wasn’t time to commute back and forth to Houston every day. When you’re in trial, it’s a sixteen-hour-a-day business, all day, every day. The outside world fades into irrelevance. It feels like going underwater. I had been to trial twice before, including a week-long one in state court. It was both exhilarating and exhausting. Afterward, I had slept for two days straight.

  We were staying at the Hotel Galvez, one of Galveston’s oldest and most famous hotels, built in 1911. It was said to be haunted, and ghost tours could be had amongst its chandeliered ballrooms and dimly lit corridors. Remington knew the owner, so we got a deal. Bock & Co. were staying there too, no doubt paying full price.

  In a stroke of bad luck, Loudamire had the room just next to mine. I wondered if some sadistic clerk had done that on purpose, or whether Loudamire had requested it to try and eavesdrop on our legal strategy. I wouldn’t put it past her. We ran into each other in the hallway on the first night. She stopped and seemed about to say something. Some condescending remark, no doubt. I ignored her and went straight into my room. It was only later that I reflected on this, and realized she might have just been trying to talk to me.