Ship of Gold in the Deep Blue Sea (77 page)

Judy is now in touch with 106 relatives and descendants of passengers and crew who were aboard the
Central America
on its final voyage.

B
OB
E
VANS BECAME
so immersed in the stories of the passengers aboard the
Central America
he sometimes daydreamed of finding things he had read about in the stories. “Finding Herndon’s sword would be great,” he had once said. “Finding Oliver Manlove’s poems would be great. Finding Badger’s $16,500 worth of double eagles in a carpetbag would be great. Finding any of that stuff that we can really tie to the story would be incredible.”

In 1989 Bob talked about two trunks they had found in the debris, which appeared to be made of leather. “They look fairly fragile,” said Bob. “In fact the one is open, the top is off of it, and there are exotic life forms living on both of them. What you seek to do is create a permanent record of those objects in their original setting that shows proper reverence. This is the goal of the scientific work on the site, to create an immortal record of the site as we have found it. Inside the one trunk from which the lid is missing we can see the brim of a hat. Tucked over in one side are two what appear to be books. What if these things are some guy’s journals? What if they’re Oliver Manlove’s book of poems? We’ve been in touch with his family. He had a sheaf of papers which contained a bunch of poems he had written. What if they’re sitting there and what if we can get those back? Because if we can find these papers, how much richer does the story become? How much richer does the history become? It’s possible that we could retrieve some of these things. Like this other trunk that still has the straps on it and it’s still closed. It looks like the quintessential treasure chest on the bottom of the ocean.”

In 1990, they recovered that trunk. It was lying in the debris field next to the white teacup. And indeed it contained treasure. Bob examined the contents in a freezer facility at Ohio State’s Department of Textiles and Clothing. Supervised by a polymer chemist and anthropologist specializing in the preservation of submerged historical fibers and papers, Bob removed each item and immersed it in demineralized water. Wet garments they framed over a fiberglass screen and flash froze at –28° C.

In the trunk they found a shirt wrapped in a steamer edition of the
New York News
dated July 20, 1857. The newsprint was still legible. They found thirteen linen shirts and many silk cravats, plus coats, waistcoats, trousers, collars, chemises, petticoats, bloomers, a dressing gown, a morning robe, and several pairs of stockings. They also found a brace of dueling pistols, a gunpowder flask embossed with an eagle, a gold watch fob cast in the head of a dog and set with ruby eyes, a quartz watch fob veined with gold, a small Oriental carving, a bottle of double-distilled “Bay Water,” three bottles of cologne, a gold buckle, two quill pens, and ambrotype photographs. The trunk is an archaeological treasure, a time capsule sealed in the late summer of 1857, and every item in it belonged to the newlyweds Addie and Ansel Easton, much of it gifts from friends, wishing them a lifetime of happiness together.

The other trunk, the one with the top missing, belonged to John Dement, the last man rescued by the
Ellen
. He had floated upon a hatchway with Ansel Easton’s friend Robert Brown and was picked up with Brown after Captain Johnsen promised Easton to tack one more time. The trunk contained sixty-four articles of clothing, including underwear, pants, coats, vests, shirts, collars, cravats, and shoes. It also held a leather shaving kit, three novels, one of which was
Lady Lee’s Widow-hood
, and a letter of introduction. This missive was dated July 30, 1857, and addressed to B. B. Lancaster, Esquire, of Baltimore:

Dear Sir:

Allow me to introduce to your acquaintance Mr. John Dement of Oregon City. Mr. Dement is one of our largest merchants here and is well acquainted with Oregon and its resources. As he is visiting your city, I have given him this, hoping that you would introduce him to such of my friends as may be in Baltimore while he is there and extend to him your usual courtesy which will be highly appreciated by him and

Your friend,

J. A. Simms

The significance of the novels and the letter lies not in their contents, but in the enormous implications of finding printed matter at the bottom
of the sea that is still legible 130 years later. John Woodhouse Audubon, who worked closely with his father, John James Audubon, and carried on the Audubon legacy of wildlife artists and naturalists, led an expedition through the southwestern United States and California in 1849 and 1850, sketching and painting the animals and birds of the region. When he returned east in 1850, he left behind the bulk of his work, two hundred drawings from the expedition, which he entrusted to a friend. The friend turned the portfolio over to another mutual friend, John Stevens, who had promised to deliver it to New York in the late summer of 1857. Stevens booked passage on the
Sonora
and the
Central America
, and realizing the value of the extensive body of original work in his care, he presumably protected and packed it well for the voyage. When the
Central America
went to the bottom, Stevens and the Audubon portfolio both were lost.

The Columbus-America Discovery Group has located many more trunks in the debris, and these trunks still lie waiting to be recovered and opened.

T
RACING THEIR CORPORATE
lineage back to 1857, the thirty-nine insurance companies who met Tommy at the dock with a lawsuit included Atlantic Mutual, ICNA, Great Western, and other American insurers, as well as consortia from Lloyd’s of London and other foreign insurers. They contended that they had insured the gold shipments aboard the ill-fated steamer, that they had paid the loss, and that therefore they now, 132 years later, owned the gold. They wanted it back. Possessing little more than the minutes to a meeting at which the directors of one London company discussed the possibility of setting aside fifty thousand pounds to cover its share of the loss, the insurance companies relied mostly on newspaper articles of the day. They had no bill of lading, no receipt, no contract to offer as evidence. Before the trial, Judge Kellam in Norfolk dismissed the claims of twenty-one of the insurance companies.

In August 1990, Judge Kellam heard the claims of the remaining insurance companies, decided the case under the law of finds, held that over the 132 years the gold sat at the bottom of the sea the insurance companies had made no effort to recover the gold and therefore had “abandoned”—
the key word—their claim to the gold, and awarded the Columbus-America Discovery Group 100 percent of all artifacts at the
Central America
site. On appeal to the Fourth Circuit Court of Appeals, a three-judge panel, in a split decision handed down on August 26, 1992, vacated and remanded the case to Judge Kellam for another trial under the law of salvage. The court held that for abandonment to occur there has to be an “express” act of abandonment, and that the insurance companies had established at least some connection to the gold. The court also opined, “We are hazarding but little to say that Columbus-America should, and will, receive by far the largest share of the treasure.”

Columbus-America appealed the decision to the United States Supreme Court. Several prominent groups, including the National Association of Academies of Science, the National Maritime Historical Society, the Marine Technology Society, and Ohio State University, filed
amicus curiae
, or “friend of the court,” briefs supporting Columbus-America. But the Supreme Court declined to hear the case at this time, so the matter returned to Judge Kellam for a new trial.

For two weeks in July of 1993, Judge Kellam heard evidence of the difficulty of the salvage, the expense, the risk to life and to capital. It was the first time a federal court had asserted jurisdiction over a wreck site in international waters. It was also the first time a court sitting in admiralty had accepted the concepts of “tele-presence” and “telepossession,” recognizing that with technology taking us into the deep ocean, where we’ve never gone before, the law must go with it, and the law must protect these cultural treasures. The court found that Columbus-America’s efforts “to preserve the site and the artifacts have not been equaled in any other case.”

At the end of the trial, Judge Kellam awarded Columbus-America 90 percent of the insured gold and 100 percent of the rest of the treasure. He reserved judgment on the remaining 10 percent of the insured gold. Columbia University, Harry John, and a colleague of John’s named Jack Grimm claimed that Tommy had used the sonar data they had compiled during their hasty February search for the
Central America
in 1984. Kellam found otherwise and dismissed the lawsuits. One man claimed that he was the first to tell Tommy about the
Central America
and that that entitled
him to a share in the treasure, but Kellam dismissed that claim on summary judgment. Columbus-America, the insurance companies, and John and Grimm appealed Kellam’s decisions, and again the case went to the Fourth Circuit Court of Appeals.

On June 14, 1995, the Fourth Circuit affirmed Judge Kellam in all respects. First, the claims by Grimm and John had been rightfully dismissed for lack of merit. Second, Columbus-America would receive 90 percent of the treasure. At the outset, the court admitted, “We are in no sense offended by the possibility that a salvor who has ‘boldly gone where no one has gone before’… might be entitled to the lion’s share of a long-lost treasure.”

The court then reviewed the six factors to be considered when arriving at a just salvage award: 1) the labor expended; 2) the salvor’s promptitude, skill, and energy; 3) the value of the property employed by the salvor; 4) the risk incurred by the salvor; 5) the value of the property saved; 6) the degree of danger to the salvaged property.

Under the first factor, the court found that from 1986 to 1992, Columbus-America had been at sea for 487 days, the crew working twelve-hour shifts. The personnel combined had logged over 400,000 hours at a cost of nearly $8.5 million. The court’s research uncovered only two other cases involving the recovery of underwater property that had lasted longer than one month. Most of the operations lasted but a few days or even hours. Even if a discoverer had expended “but a fraction of the labor detailed in the above account,” wrote the court, “that fraction alone would represent a huge investment. In the actual case, it is apparent that Columbus-America’s effort was monumental.”

Discussing the second factor, the court stepped outside its usually staid approach to rendering the law. “When we write an opinion,” began the court, “our tendency to emphasize those discrete facts necessary to our legal conclusions sometimes serves to distort the broader perspective. Were we to allow that to occur in this case, it would be a disservice to Columbus-America and the significance of its accomplishments. Hence, a brief review is in order.” The court then devoted a large part of its decision to praising Tommy and the Columbus-America Discovery Group and concluded, “We cannot imagine anyone demonstrating more diligence, skill,
and energy than Columbus-America has shown here. Its efforts provide a standard against which all others should be judged.”

Under factor number three, the court found that the vehicle, now called
Nemo
, the
Arctic Discoverer
, and the rest of the recovery equipment was worth over $6 million. That was for the pieces, not the technology. Columbus-America had also rented other equipment and spent money on related items that ran to more millions. The judges could find no cases where a recoverer had used property of a comparable value.

The fourth factor the court considered was the risk incurred. “The crew of the
Arctic Discoverer
constantly dealt with heavy equipment—not the least of which was the six-ton
Nemo
—and the vessel’s 160-mile distance from shore meant that treatment for the most severe injuries was hours away…. As the district court noted, ‘anytime a ship goes to sea, there is danger to the ship and the persons aboard.’”

Number five was the value of the property saved. The court wrote that, despite the testimony of trial experts varying substantially in their estimates, it “appears that the treasure’s value will not approach one billion dollars, as earlier speculated. It is nevertheless clear that, when the salvage is completed and all the treasure is eventually sold, the haul will be one of the largest in history. One commentator has suggested that ‘the combination of high values and highly meritorious service should result in a high award.’ We entirely agree.”

In assessing the degree of danger to the ship in distress, the sixth factor, the judges took a unique approach. “While it is true that the ocean itself presents no danger to the essential nature of gold and similar substances, it is also true that any value that our society attributes to gold depends entirely on the ability of someone to assert a property interest in it. Because property is far less certain of being recovered once it has sunk, especially when it has sunk in deep water, we perceive that its sinking sharply increases the degree of danger to its continued existence and utility as property.” They called Columbus-America’s recovery of the
Central America
“the ultimate rescue from the ultimate peril.”

In earlier briefs, Columbus-America had suggested that when evaluating an award admiralty courts should consider a seventh factor: the
discoverers’ preservation of the historical, archaeological, and informational value of the wreck and cargo. Judge Kellam already had addressed the issue, and the Fourth Circuit deferred to him, noting that the district judge “was convinced that Columbus-America had taken extraordinary care in preserving the
Central America
, benefiting a range of sciences and disciplines.” It quoted Kellam on how expert witnesses “‘described the care and means used to preserve the artifacts and objects recovered … and how Columbus-America followed their advice and suggestions for handling and preserving the articles. They described … the discovery of new species, and the unparalleled opportunities while aboard the research vessel…. They demonstrated the particular care exercised in recovering and handling delicate items such as jewelry, china, cloth, papers, and so on. One of the items was a cigar, which appeared in perfect condition.’”