Who owns the wreckage of the San José, and what should be done with it?

On 8 June 1708, the Spanish galleon San José was attacked off the coast of Cartagena by a British squadron led by rear-admiral Charles Wager. As flagship of a treasure fleet destined for the court of King Philip V, the warship was laden with riches from across the continent: diamonds and emeralds from the Andes, Peruvian gold, Panamian pearls, silver coins and other commodities. The San José exploded and sank with the loss of all but 11 of its 600 crew and passengers.

Now, more than three centuries later, the wreckage has been discovered. Announcing the find on 5 December, the Colombian president, Juan Manuel Santos, said it ‘constitutes one of the greatest – if not the biggest, as some say – findings and identification of underwater heritage in the history of humanity’. Initial estimates of the value of the treasure of the San José vary between $1bn (£662m) and $17bn.

But who does the wreck belong to?

Colombia is not the only party claiming ownership. Sea Search Armada (SAA), an American salvage company, states it first located the wreck in 1981 and was promised a 35% share of the treasure in a deal with the Colombian government. Colombia disputes this, and without access to the site, SAA’s case may not be as strong as it believes. The Spanish government is also making a claim, highlighting the 2001 UNESCO convention on the protection of underwater cultural heritage that allows a country to retain ownership of its lost state-owned vessels. Colombia, however, has not signed it. Peru and other source countries have yet to throw their hats into the ring.

A recent dispute over another Spanish wreck provides an insight into the possible legal battles ahead. In 2007 Odyssey Marine Exploration, an American salvage company, located and secretly recovered more than 500,000 silver and gold coins from the remains of the frigate Nuestra Señora de las Mercedes, which had been sunk by the Royal Navy off Portugal in 1804. This began a long and costly struggle for ownership between Odyssey, Spain and Peru, the latter claiming a share on the assumption that the treasure had been taken from the Incas. As the coins had been flown to Florida, the case was decided in a US court. In 2012 it ruled that the treasure was Spanish property due to the fact the Mercedes was a Spanish warship and at the time of the sinking Peru was a Spanish colony, not an independent nation. Odyssey was forced to hand over the coins, which were put on display in Madrid in 2014.

President Juan Manuel Santos said that a museum would be built in Cartagena to house the ship’s treasures, but raising, conserving and displaying the San José will not be easily affordable for any party. The wreck lies 16 miles offshore in 300m of water, too deep for archaeologists to reach using scuba technology. It is unclear how much of the remains on the seafloor beyond the treasure will be studied or recovered. Sea Search Armada claims to have spent $12m already on the search; excavation costs could far exceed this sum.

Maritime treasure-hunters base their businesses model on the ‘law of finds’, a traditional common-law doctrine that grants ownership to the finder and allows salvage costs to be funded by the selling of artefacts. The 2001 UNESCO convention forbids commercial exploitation of underwater heritage. Currently Spain is bound by this, Colombia is not. The convention also recommends preserving wreck sites in situ as the best means of preservation. Now its resting place has been discovered, leaving the wealth of the San José on the seabed may not be a viable option.

Although museum display might seem to be the best outcome, even this raises issues. The touted exhibition near to the wreck site in Cartagena could boost tourism to the local community, but would a national museum allow greater public access? What is the value and public benefit of a display of the treasure, compared to the archaeology of the ship itself, and the sailors who lived and died on board it? Has the fact that this site is also the grave of 600 sailors and passengers been lost in the scramble to stake a claim?

There is a saying among maritime archaeologists that each country can afford one big shipwreck excavation. The UK raised the Mary Rose, Sweden the Vasa, and the USA the USS Monitor. National pride enabled these projects and the costly and lengthy conservation work they required. Perhaps the San José will be Colombia’s turn. As a tangible symbol of the shared heritage of Spain and its former colonies, the lost galleon represents an opportunity for all state parties to co-operate and perhaps confront the wounds of the past.