Leaked documents allude to a deal to help Spain recover a $500 million treasure found by a U.S. company
WikiLeaks' release of a deluge of U.S. State Department cables has brought to light diplomatic conversations linking U.S. support for Spain's claim to a half-billion dollars worth of silver coins salvaged from the ocean floor by an American company to Spanish help for a now-deceased U.S. citizen who was trying to recover a painting in Spain that the Nazis confiscated from his grandparents. The painting, "Rue Saint-Honore, apres midi, effet de pluie," by Danish West Indian impressionist Camille Pissaro, fell into the hands of the Nazis in 1939 in exchange for exit visas that enabled Holocaust survivor Claude Cassirer's grandparents to flee Germany. The painting, which has changed hands several times, now hangs in the Thyssen-Bornemisza Museum in Madrid.
The treasure - 595,000 silver coins and other artifacts more than two centuries old - has been warehoused at a secret and secure location in Florida since March 2007. Odyssey Marine Exploration, a high-tech salvage company based in Tampa, raised the historic cache from a sunken ship code-named Black Swan, which lies 3,000 feet down in international waters 100 miles east of Gibraltar. Both matters are in litigation in U.S courts.
A July 2, 2008, cable from the U.S. Embassy in Spain tells of a meeting between U.S. ambassador Eduardo Aguirre and Spanish culture minister Cesar Antonio Molina in which Aguirre suggests that although the Black Swan and Cassirer cases "were on separate legal tracks, it was in both governments' interest to avail themselves of whatever margin for maneuver they had, consistent with their legal obligations, to resolve both matters in a way that favored the bilateral relationship," the cable reports.
Molina was reluctant to link the two cases and told Aguirre that Spain could not turn over the painting without a decision from its courts, but he said he was willing to meet with Cassirer, the cable says. Cassirer, a San Diego resident, died last October. His family is still pursuing the case in U.S. District Court for the Central District of California.
The WikiLeaks revelations of these conversations, suggesting a "you-scratch-my-back-and-I'll scratch-yours" deal, drew sharp criticism from Odyssey.
"The possibility that someone in the U.S. government came up with this perfidious offer to sacrifice Odyssey, its thousands of shareholders and the many jobs created by the company in exchange for the return of one painting to one individual is hard to believe," Odyssey CEO Greg Stemm says in a statement.
WikiLeaks released the cables Dec. 8. On Jan. 3, Odyssey filed a motion in the 11th U.S. Circuit Court of Appeals in Atlanta, asking the court to reject a friend-of-the-court brief filed by the U.S. government in support of Spain's claim to the coins.
Spain bases its claim on the U.S. Foreign Sovereign Immunities Act, which says the property of foreign governments - warships and military aircraft included - is immune from the jurisdiction of U.S. courts. (Odyssey has filed its claim to the Black Swan treasure with the U.S. District Court in Tampa.) Spain says the Black Swan was a Spanish warship, the Senora de Mercedes, that exploded and sank in an 1804 engagement with the British fleet. Spain says the warship and everything on it remain its property unless its government expressly abandons the ship and says it no longer owns it.
In its January motion, Odyssey says the United States backed off a long-held position in its friend-of-the-court brief that the Foreign Sovereign Immunities Act exempts the commercial activities of foreign countries from immunity. Odyssey argues that the Senora de Mercedes was on a commercial mission when the British warship sank it and that a "large majority" of its cargo, including the coins, was privately owned.
Odyssey says the U.S. government's apparent reversal on sovereign immunity reflects the "clandestine negotiations between the United States and the Kingdom of Spain to use U.S. government support of Spain's position in this case as a bargaining chip with respect to completely unrelated litigation."
Odyssey is asking the court to reject the U.S. friend-of-the-court brief or at least amend it to reflect the U.S. government's "conflict of interest" in the case. "We've wondered why the United States changed its longstanding position on sovereign immunity, which prior to this case was consistent with U.S. law, international law and U.S. naval regulations that in order for a foreign country's ships and cargo to be immune from the jurisdiction of the U.S. courts they must be engaged in military, non-commercial activities," says Melinda MacConnel, Odyssey vice president and general counsel. "These released cables do call into question the motivation behind the amicus brief filed by the executive branch supporting Spain in the Black Swan case."
Odyssey says in its motion that regardless of whether it was legal for WikiLeaks to release the cables, they are now public record. The company has included copies of the leaked correspondence in court filings.
This article originally appeared in the March 2011 issue.