1980-2013 Chronology of Government of Colombia Expropriation of Property Belonging to the American Investment Group, SSA
The purpose of this Chronology is to bring to light more than three decades of illegal actions against the American investment group, Sea Search Armada, by officials of the Government of Colombia (GOC).
Sea Search Armada (SSA) investors spent more than $10 million in good faith and in compliance with every Colombian law and regulation to survey the ocean floor outside Cartagena between 1980 and 1983, but then had to spend another $2-$3 million over the next 32 years to defend its rights against the GOC's' bad faith actions.
Beginning in January,1989, in response to a suit filed by SSA in Civil Court in Colombia, the GOC employed litigation tactics, not to argue the merits of its case, but to delay, to coerce and intimidate the justices, and to preempt the judicial process. Its veiled threats to the magistrates did not induce the ruling in its favor the GOC hoped for; instead it resulted in a reprimand from the court in the form of an official decree and censure of the GOC’s coercive tactics. GOC dilatory tactics extended to 19 years the length of a civil suit that should have been settled out of court and never brought to trial, as will be made clear in the following chronology. The GOC and its agents further extended the term of litigation to May 2011 by filing suits in Administrative Courts, both of which eventually ruled in favor of SSA.
Thus, in the course of 22 years of legal proceedings in Colombia, SSA’s rights were recognized in every instance by every court, and by every jurisdiction: constitutional, civil, and administrative. Viewed somewhat differently, the GOC’s bad faith actions resulted in decades of expropriation and denial of justice for the Americans. Such illegal taking is prohibited by U.S.-Colombia trade agreements in effect during the entire time of the legal proceedings.
This Chronology will show that the GOC did not relent in its efforts to wrest ownership from SSA over nearly 30 years. Even after the Colombia Supreme Court in 2007 upheld lower court rulings that the American investors were entitled to 50% of the treasures they found, the GOC refused to implement the rulings, and threatened to use military force to prevent SSA from exercising its legal right to access its property.
With all efforts to find a solution in Colombia exhausted, and with no help from the U.S. government, the last venues remaining to the American investors are outside Colombia. SSA filed complaints against the GOC in the Federal District Court in Washington DC in April, 2013, and 2) in the Inter-American Commission for Human Rights, an arm of the OAS, in March, 2013. Both of these cases were withdrawn by SSA in 2015 because the GOC insisted on it as aprerequisite to negotiate a settlement of SSA claims against the GOC. These, too, were in bad faith by the GOC. While it pretended to discuss settlement aspects with SSA, such as the size of the area covered by SSA's 1982 claim, it was in fact engaged in covert operations to locate and recover artifacts from that claimed area.
The Chronology is preceded by a brief summary of SSA’s legal actions in Colombia.
A Summary of SSA’s Litigation In Colombia
In 1979, Glocca Morra Company, which transferred its rights to Sea Search Armada (SSA) in 1983, requested authorization to search for shipwrecks in Colombian waters. The request was authorized by Colombia's maritime authority (DIMAR) following Glocca Morra’s fulfillment of all measures required by law at that time.
After two years of searching, under the national Navy's constant oversight and an investment of $10 million (in 1980 dollars), Glocca Morra reported the discovery of the shipwreck to DIMAR on March 18, 1982. From that moment, Colombia recognized the company's ownership to half of the shipwreck, as provided by Article 701 of the Civil Code, which stated that: "Treasure found in outlying territories will be equally divided between the territory's owner and the person who made he discovery."
However, in 1984 the government issued Law 2324 of 1984, whose sections 188 and 191 reformed Article 701's clause regarding antique shipwrecks. Law 2324 reduced the discoverer's ownership rights from 50% to 5%. This new rate was applied retroactively to the San Jose shipwreck, even though it had been reported two years earlier.
Given this situation, on January 13, 1989, SSA filed a lawsuit against the Colombian nation before the 10th Civil Circuit of Barranquilla, asking the court to declare SSA's ownership to 50% of the discovered treasures if the wreck was located in Colombia's territorial waters, and to the entire wreck if it was located on Colombia's continental shelf.
In addition to this lawsuit, SSA also filed suit in Colombia's Constitutional Court against Articles 188 and 191 of Law 2324 of 1984, which had reduced its ownership stake to 5%. On March 10, 1994, the Court ruled that the Articles were unenforceable, and thereby restored SSA's ownership to 50% of the discovered treasures.
Following this ruling, the 10th Civil Circuit Court of Barranquilla issued a judgment on July 6, 1994 stating that "the goods with economic, historical, cultural, or scientific value that qualify as treasure will belong in common and undivided equal shares (50%) to the Republic of Colombia and the Sea Search Armada Society," regardless of whether the area reported in the discovery corresponded to Colombia's territorial waters or to its continental shelf. On March 7, 1997, the
High Court of Barranquilla upheld the ruling in full, and on July 5, 2007, the Supreme Court of Colombia definitively confirmed the common and undivided rights of equal ownership over the shipwreck's objects qualifying as treasure, and the nation’s exclusive ownership over any objects qualifying as cultural heritage.
Finally, on June 1, 2009, the 16th Administrative Judge of Bogota settled a class action lawsuit filed because of the government's noncompliance with the Supreme Court's ruling. This judge, as well as the May 26, 2011, decision by the Administrative Court of Cundinamarca, both upheld the Supreme Court's power of res judicata and submitted to the Supreme Court’s judicial authority.
Thus, throughout 22 years of legal proceedings (1989-2011) in Colombia's judicial system, SSA's ownership to half of the treasures was recognized in every case, in each lawsuit, and furthermore, in all jurisdictions (constitutional, civil and administrative).
SSA’s Litigation in U.S. and International Courts
In December 2010, SSA filed a civil action in U.S. District Court, DC, against the Government of Colombia. This step was reluctantly taken but believed necessary to protect SSA investor’s interests. All legal remedies in Colombia had been exhausted, the government persisted in defying the rulings of the Supreme Court or to cooperate with SSA on the recovery of the San Jose, and had threatened SSA in writing that SSA would be intercepted by military force if it attempted to implement the Supreme Court’s ruling on its own. The only remaining hope for justice lay in venues outside of Colombia.
In 2011 the U.S. District Court ruled that SSA’s law suit was inadmissible due to the expiration of the statute of limitations. That is, the illegal acts SSA complained of had happened more than three years—the statute of limitations—before the case was filed. SSA appealed the court’s refusal to accept the case, but its refusal to admit the case to trial was upheld by the U.S. Appeals Court in April 2013.
SSA prepared a new case, based in part on the Government of Colombia’s illegal interference in SSA business. The Complaint was filed in April 2013.
The Inter-American Commission on Human Rights (IACHR) is a Washington DC based entity of the Organization of American States, which includes Colombia among its members. Its purpose is to eliminate violations of human rights among its members. On March 29, 2013, SSA filed a petition with the IACHR, claiming the GOC violated SSA’s human rights under IACHR Convention Articles 21 and 25, the right to own and enjoy property and the right to judicial protection. The petition was filed both under the name of SSA as an organization and as Danilo Devis, SSA’s lawyer in Colombia, as an individual. The legal process with the IACHR is a two step process: admissibility and practice.
Further litigation in the U.S. is being investigated. A complaint to the U.S. Trade Representative, Office of Enforcement, that the GOC has violated the U.S.--Colombia Trade Promotion Agreement (i.e. free trade agreement) appears to have merit. According to the U.S. Trade Representatives web site: “If a U.S. investor believes that the Colombian government has breached key investment rules of the Agreement – for instance, a prohibition against discriminatory treatment of a U.S. investor – then that investor is guaranteed recourse to neutral, transparent, and binding international arbitration. The web site further states, “The Colombian government cannot illegally seize U.S. investors’ property or illegally destroy the value of their investments without paying full compensation.” If the complaint is filed with the USTR, it will likely be filed in 2016.
March 20, 1980: The GOC officially outlined the legal procedure that it and Glocca Mora (a predecessor and later a partner of SSA) must follow regarding SSA’s quest for the San Jose: 1) search for targets and file location of targets with GOC, followed by 2) preferential negotiations between the two parties for recovery of any finds. Predicated upon this accord, Glocca Mora, and subsequently Sea Search Armada (SSA), invested millions of dollars searching the areas licensed exclusively to it by the GOC.
November 1981: Glocca Mora (GM) joined with other investment groups to form the partner-ship of Sea Search Armada (SSA) with the objective of continuing the search for the San Jose using the Submarine, August Piccard. Colombian Navy observers were on board the Piccard and its tender at all times. In addition, the Piccard was shadowed by a Colombian Navy diesel electric submarine of WW II vintage and Navy mini-submarines. Through such multiple and simultaneous observations the location of the Piccard was known at all times by the GOC, as were the locations of SSA targets. Nevertheless, when GM was completing the search of the licensed area identified as of prime interest by SSA marine historians, the GOC ordered the SSA Survey Director to disclose to it in writing the location of the target thought to be the San Jose. Immediately upon completion of the survey stage, the sub crew and Survey Director were informed by the GOC and the Cartagena Harbor Master that their work there was finished, and future permission to enter Cartagena Harbor would be denied.
Feb. 16, 1982: Glocca Mora/SSA filed with the GOC agency having jurisdiction, DIMAR, the “Confidential Report of Submarine Exploration,” which also included coordinates of the target thought to be the San Jose, although the location was already known to the GOC from its observers and from the information it demanded from SSA’s Survey Director. The coordinates in the report were based largely on a 1:80,000 nautical chart and assumptions of seabed locations based upon underwater triangulation. Sophisticated and precise navigation equipment was not yet available. Years later it became available in the form of first, LORAN, and later, GPS.
July 18, 1982: As soon as the GOC came into possession of the San Jose’s location, it began, at the highest level, to surreptitiously develop a scheme to take over the properties of the American investors without losing the support of the US Government. Lilliam Suarez, Legal Secretary to Pres. Betencur, hypothesized that the GOC could twist its present laws to increase its share from 50% to 95% of the San Jose. She directed GOC lawyers to undertake legal research to support her case. On July 18, 1982 the legal opinion was delivered to her. It did not support her case, but denied it. The GOC lawyers opined that SSA had a property right of 50% of the proceeds from their finds, and also, as stated in the legal opinion, had “the privilege of entering into a contract with the State for its (i.e. finds) removal.” The GOC opinion was consistent with the March 20, 1980 official GOC procedure (above) governing the search and salvage process upon which GM and SSA investors based their investment. Moreover, the 1982 official legal opinion requested by Suarez informed her that the procedure she proposed would violate Colombia’s constitution.
July 15, 1983: Legal Secretary to Pres. Betencur Suarez was not satisfied with the results of the GOC’s legal research, and was determined to reduce SSA’s share to 5%. She ordered a second legal opinion. The second legal opinion, like the first, opined that a finder’s share of 5% wasinconsistent with Colombian law. In the final paragraph, the report states: ”The rights which may be applied in favor of the Glocca Morra Company are equal to one-half of that which is recovered, according to the text of the Civil Code, that is, that which is found is divided into equal parts and the Glocca Morra Company has the right to that portion for having obtained the respective permit through Resolution 354 of 1982, as stated in the draft of the response referred to initially.” The legal opinion was signed by Admiral Miguel Rangel Santos. Subsequent actions by Suarez and her conspirators indicate she was fully aware, having read and discussed the GOC’s several and consistent legal opinions, that her objective of taking 90% of SSA’s share (reducing it from 50% to 5%) was clearly illegal. The records show that her next steps were to devise legal trappings and sophistry that would serve as a fig leaf to cover the GOC’s illegal taking.
September, 1983: Ted Dimitry, Admiralty lawyer in Houston, went to Colombia as an agent of SSA, carrying a document to file officially with the GOC to amend the coordinates filed in 1982. However, when he met with the Navy representatives to file the amendment they strongly discouraged such a filing. He returned to Houston without filing the amendment, and later prepared an affidavit describing the incident.
January 10, 1984: By decree # 29, the President of Colombia created the Antiquities Commission on Shipwrecks to advise the GOC on all matters relating to antique shipwrecks.
September 21, 1984: While Lilliam Suarez was working behind the scenes to expropriate SSA’s properties, her co-conspirators in the GOC kept SSA busy with the pretense of a contract negotiation to recover the San Jose. After several months of delays the GOC finally offered contract terms it expected SSA to refuse. SSA’s share was reduced from 50% to 35%. SSA’s protestations were stonewalled. The GOC’s bad faith offer in light of its own legal research, which was known to SSA, became a serious concern of SSA, particularly given the GOC’s several months of obvious delaying tactics at the time. SSA worried the GOC would take SSA’s entire share. Under such duress, SSA formally accepted in writing the GOC offer of a 35-65 split. The accord was reached September 21, 1984.
November 2, 1984. The GOC sent letter 3315 which recognized accord on the salvage contract it had tendered to SSA. However, the GOC continued to delay signing the contract. During 1984, the GOC (Suarez) decreed that the property discovered by SSA was owned entirely by Colombia, and that SSA was entitled only to a finder’s fee of 5%, taxable at 45 %. The Executive Branch decree, which the GOC by its own legal research knew to be illegal, was eventually declared illegal at every stage of the Colombia judicial process: civil, constitutional and administrative courts. During the (now 30) years SSA was denied access to its properties,
1) the civil court sequestered SSA’s property to obviate the announced plan of the GOC to contract with a private party (with considerable political influence) to salvage the San Jose,
2) the Superior Court officially reprimanded the GOC for attempted coercion of judges in both the Civil and Superior courts,
3) the GOC recklessly and publicly revealed the location of SSA’s properties, which had been disclosed to the GOC in confidence, thereby exposing the property to looting. (it is estimated that more than 100 entities worldwide have both the motive and the means to loot the SSA site using state of the art deep diving submarines, search equipment, etc., provided they have the approximate location), and
4) the Constitutional Court ruled that the actions taken by the GOC to confiscate SSA’s property was unconstitutional, and therefore illegal.
June 10, 1985: Fearful of Executive and Legislative actions to expropriate its property, SSA sent another letter urging the GOC to sign the contract agreed to months earlier.
1986: President Bettencur sent to the parliament a bill drafted by his Legal Secretary, Lilliam Suarez. The bill was enacted as Law 26. Its purpose was to expropriate SSA’s properties in the guise of a legal act. Following enactment, Law 26 was applied retroactively to SSA, although such an action was clearly in violation of Colombia’s constitution.
March 27 & 28, 1987: After President Bettencur was succeeded by President Barco, the plan of Lilliam Suarez to illegally take SSA’s property was implemented by the Barco Administration, largely by Barco’s Chief of Staff, German Montoya. Secret meetings between Swedish business interests and the GOC were held at the Presidential retreat near Cartagena. (German Montoya is presently a member of the Antiquities Commission). At the clandestine meetings near Cartagena in 1987, Suarez’s plan to screen out SSA using a charade of contracting with a sovereign nation was discussed and refined. The Cartagena meetings resulted in a covert agreement to award the contract to Swedish businessmen (masquerading as the Kingdom of Sweden) following a charade of inviting and evaluating bids from several unsuspecting sovereign nations. Payoffs to influential Colombians was assured by the Swedish businessmen. A year later, the secret meetings and the corrupt participation by German Montoya, President Barco and others erupted into a national scandal when, during a Parliament committee hearing, the secret meetings were revealed. Under questioning, President Barco’s Legal Secretary revealed he had not only attended the meetings, but taken notes to assist in implementing the decisions at the meeting. The notes revealed that 1) the salvage of the San Jose would be done not by governments, but by private businesses in the guise of the Kingdom of Sweden, 2) the Swedes would pay “commissions” to certain influential Colombians, and 3) the fix was in for the Swedish businesses to win the ostensible “competitive bidding” process in the guise of the sovereign Kingdom of Sweden. The expected profits for the recovery of the San Jose were to flow to the GOC-owned private business, Ecopetrol, and later to the GOC. The GOC and Swedish businessmen agreed at the secret meetings that the Ecopetrol-Swedish enterprise would operate using the same private business model the GOC, via Ecopetrol, had developed and employed with private business such as Occidental Petroleum.
June 15, 1987: The GOC issued the Requests for Proposals (RFP) to the Swedes and to nine unsuspecting nations. Upon receiving the RFP, the US Ambassador to Colombia cabled a copy to the State Department, DC. The potential problem of a confiscation of SSA’s properties was raised. The Ambassador requested instructions from DC.
November 5, 1987: SSA’s Colombian lawyer, a partner of Baker & McKenzie, reported, both orally and in writing, a “long meeting” with Lilliam Suarez. She put the argument that SSA had no rights to its finds. SSA’s lawyer, Jorge Lara, wrote in his memo of the meeting “She considers that what Sea Search Armada has is an expectation under the law, but not a concrete legal right.” On the face of it, her sophistry is the antithesis of the rule of law, and contrived as a fig leaf to cover the theft of SSA’s properties. It led to 19 years of litigation in which her opinion was denied at every level of Colombia’s judicial system, as it had been by two separate legal studies ordered by her but ignored because they did not achieve the desired result of wresting the San Jose from the American investors. It apparently did not matter to Suarez and to others who later implemented her plan that the Americans had complied in good faith with every applicable Colombia law and regulation.
July 15, 1988: The SSA Managing Director, in an effort to regain SSA’s rights to its properties telephoned Mauricio Obregon, who served on the newly created Antiquities Commission, one of whose tasks was to solemnize the corrupt deal with Swedish businesses by declaring the faux “Government of Sweden” the winner of a competitive bidding process. Obregon was intractable, and ended the conversation with, “The matter is settled. We expect to sign a contract (with the Swedes) very shortly.”
July 18, 1988: The GOC-owned private company, Ecopetrol, delivered a Memorandum Of Agreement (MOA) to the Swedes. The MOA, contained the terms and splits already agreed upon in secret meetings. The GOC increased its share of treasure yet again. The Swedes were to receive a share approximating 25%, even less than the 35% the GOC demanded from SSA four years earlier. In addition, the Swedes agreed to pay SSA’s finder’s fee of 5%, increasing the GOC’s share further. By shifting payment of the finder’s fee entirely to the Swedes, the GOC also provided a perverse incentive to the Swedes to find or invent a reason not to pay the Americans. The deal with Swedish businesses again betrays the GOC’s nose for profits regarding the San Jose. Of particular note was the large size of the work area given to the Swedes by Ecopetrol (AKA Empresa Colombiana de Petroleos). The Swedes could salvage anything within an area of 100 nautical miles surrounding the SSA site.
July 23, 1988: German Montoya, President Barco’s Chief of Staff answered a letter from US Congressman Guy Van Der Jagt, assuring him rather haughtily, “Colombia does not make secret agreements,” an ironic claim considering his secret meetings which were about to be exposed by the Colombian parliament. The ensuing scandal revealed that the deal violated several Colombian laws. The violations aroused the interest of the Comptroller General (the nation’s separately elected watchdog agency), who eventually rebuked the actions of Montoya and charged that the contract with the Swedes was in fact illegal.
July 29, 1988: The Swedish newspaper Dagens Nyheter announced that Swedish business interests had won the contract to salvage the San Jose. Harry Schein was identified by the newspaper as the president of the Swedish investment bank that would pose as the sovereign Kingdom of Sweden. In fact, the only purpose of the bank was to serve as a false front for the private businesses that would actually do the work. The Swedish paper reported that“On several occasions, Schein has himself conducted negotiations directly with Colombia’s President Barco (whose wife is American with Swedish parents).” No mention was made of the secret meetings with Barco and Montoya which preceded by several months the GOC’s issuance of Requests for Proposal to the unsuspecting sovereign nations. At the same time, a Colombian newspaper carried the headline, THE SWEDES WILL EXECUTE THE RECOVERY OF THE GALLEON. The Swedes, it reported, would pay SSA’s finder’s fee, leaving the vast majority of proceeds, and no financial risk, to the GOC. The Colombian paper also stated that the contract would be carried out “...between governments, which would carry out the project and would select government agencies or private entities of the respective country to execute the same under its total responsibility.” (Emphasis added.) Other newspapers reported that all the work would be done by private businesses after the Swedes paid “commissions” to influential Colombians.
August 4-24, 1988: Leading Colombian newspaper, El Espectador, reported that graft in the Swedish deal involved the President’s Chief of Staff, German Montoya. Its headline was “SWEDISH FIRMS (were) PROMISED COMMISSIONS.” Corruption in the GOC deal with the Swedes was reported by both the leading Colombian newspapers, and by Siglo, which headlined “A SCANDAL IS FORESEEN AMONG HIGH OFFICIALS” and reported “...a traffic in influence of major importance...may involve the Secretary General of the Presidency, German Montoya.” It reported the secret meeting in Cartagena March 27-28, and noted it occurred “...three months before the government invited other companies to present their offers for the retrieval of the galleon and the recovery of its treasures.”
January, 1989: After two years and several unsuccessful attempts to settle its differences with a hostile and uncooperative GOC, SSA engaged Colombian counsel Danilo Devis to sue the GOC in Colombian courts for SSA’s rights. The suit was filed in the Civil Court in Barranquilla. It soon became clear the GOC’s principal defense was dilatoriness and coercion of judges.
May 22-24, 1989: As the scandal of the secret deal between the Swedes and the GOC became more public, and therefore more threatening to its conspirators, the Barco Administration initiated an alternative strategy. It quietly invited a small group of American academicians andtechnicians to a “Meeting for the Recovery of the San Jose” in Cartagena. SSA was pointedly neither informed of the meeting nor invited to it. Nor was it mentioned as the acknowledgedfinder of the ship, nor that it had filed a lawsuit against the GOC four months earlier claiming the finders share of 50% property rights. SSA obtained a list of those invited and on May 23 sent each participant a certified letter explaining SSA’s position. The US Department of State informed SSA it had officially complained to the GOC that SSA had not been invited. The GOC’s Vice Foreign Minister for the Americas answered the Ambassador’s complaint by stating, “...while the Shipwreck Committee (an official GOC committee and the ostensible host of the meeting) regrets that representatives of Sea Search Armada were unable to attend the meeting” (no mention of not being invited)...the Committee could meet with (SSA) in November. The GOC reply to the American ambassador was ironic; by November the GOC expected to have a fully executed contract with the Swedes, thereby making a meeting with SSA moot, and a waste of SSA’s time and money.
July 23, 1989: Secretary General German Montoya answered a letter from Congressman Van Der Jagt, “...Colombia does not make secret agreements in any case, and all its acts are subject to the formalities and publicity that the law establishes.” Montoya’s mendacity is stunning for chutzpah in the light of the scandalous facts emerging from the Colombian Parliament hearings regarding his execution of Suarez’s plan, and the official public statements by the nationally elected head of Colombia’s watchdog agency. Montoya goes on to inform the U.S. Congressman that, “Based on what has been put forth, I do not think it necessary to entertain fears about the recognition of the rights of the Sea Search Armada company and that, therefore, the position of Colombia is found to be clearly one of full respect for the same in accord with the law.” Presumably according to the law as construed by Lilliam Suarez, who argued that SSA had no legal rights to the San Jose, only an “expectation” based upon the laws.”
August 11, 1989: Less than a month after German Montoya’s misleading reply to Congressman Van der Jagt, Mr. John Hagard, the Charges de Affaires at the Swedish Embassy, Washington DC, replied to an inquiry from the House Committee on Foreign Affairs Chairman, Dante Fascell. Mr. Hagard contradicted German Montoya’s claims, that the deal with the Swedes was a government to government deal. Hagard stated unequivocally “...the Swedish government is not a party to any operation regarding the San Jose.” To leave no doubt that the Swedish parties were private businesses and not a government entity, despite the grandiose claims of Harry Schein, Hagard states, “An independent Swedish company showed interest in a Colombian request/tender for assistance in salving the ship. In the event a contract is signed between this company and any party on the Colombian side, the Swedish company will have exclusive responsibility for its own contractual rights and obligations.” (Emphasis added)
August 24, 1989: Secretary of State Lawrence Eagleburger informed the Managing Director of SSA that “...Ambassador McNamara personally underscored to President Barco the United States Government’s keen and continued interest in seeing the Colombian authorities negotiate in good faith with representatives of your company. I have to report to you in all frankness that the Colombian response to this latest demarche was a reiteration of the decision to award a salvage contract on a government-to-government basis.” Secretary Eagleburger went on to say“the Swedish bid to obtain the contract appears to have fallen by the wayside now that the Swedes have privatized the public sector investment bank that had been negotiating with the Colombians.”
November 3, 1989: The newspaper El Tiempo disclosed that the contract with the Swedes had fallen through, but that the GOC might continue the project on its own (presumably with the help of the American technicians it had assembled in Cartagena six months earlier): “The Swedish investment bank initially chosen went private. Although the change does not alter the guidelines set by Colombia, the government may not approve it. If there is no definitive agreement with the Swedes, the country (Colombia) will do the job of identifying the treasure.” In other words, the GOC’s face-saving position was that it would continue with the salvage project on its own, presumably while still denying justice to SSA. The article goes on to report that the watchdog agency, Comptroller General of the GOC, warned against “unbridled expectations of profit,” from the San Jose “...as there is no certainty of profits for the country.” Clearly the GOC viewed the project in business terms, as it operated through the private but state owned company Ecopetrol using a business model with the clear expectation of business “profits” for the GOC and a few political insiders.
November 6, 1989: The Colombia newspaper headline reads SALVAGE OF THE GALLEON SAN JOSE IN DANGER OF FOUNDERING. The watchdog agency, Comptroller General, asks that the contracting process with the Swedes “be frozen,” because of several questionable aspects, including: 1) “Some bidders were given better treatment than others,” and 2) the profits to Ecopetrol and the nation could be increased by tougher negotiations with the salvor.
Also in November 1989 the Colombia newspaper El Espectador stated, “It is now known that the Swedish investment Bank will no longer be the intermediary for the project, because recently it went private.” One might add that it “went private” suddenly and without warning following the inquiries three months earlier from Secretary of State Eagleburger and Committee Chairman Fascelli. The GOC had already signed the contract and submitted it for the signature of the president of the investment bank, but the bank instead was sold off and its president, Harry Schien retired to a remote area in northern Sweden. The GOC was left standing at the altar; no legitimate foreign government was willing to join it in a project to recover the San Jose, particularly in light of the flagrant corruption of influential Colombians. Although the GOC blustered that it would finish the project on its own, the face-saving was not taken seriously.
Although the corrupt faux government to government deal between private parties in Sweden and Colombia had failed, the GOC refused to enter settlement talks with SSA. Although its own legal research in 1982 and 1983 left no doubt SSA could win the case on its merits the GOC employed dilatory tactics to keep the matter in the Colombian judicial system nineteen years.
June 10, 1992: The GOC, via its Ambassador to the US, Garcia-Parra, answered a letter from House Ways and Means Committee Chairman Dan Rostenkowski urging the GOC to settle with SSA. At least a dozen such letters emanated from Capitol Hill over the years, and all received more or less the same reply from the GOC, to wit: 1) the legal dispute was in the hands of the Colombia Judicial Branch, and by Colombian law could not be settled before the litigation was concluded (absolutely untrue), and 2) as used by Garcia-Parra in his letter to Chairman Rostenkowski,“You may be assured that the Colombian Government will abide by the decision of the Colombian Courts on SSA’s claim.” In closing he says, “...it is the objective of my government that SSA’s claim be dealt with fairly and in accordance with applicable Colombian law.” However, when the Constitutional Court found in SSA’s favor, and ruled that the GOC’s actions toward SSA were unconstitutional, a ruling that could not be appealed, the GOC did not abide by the ruling but continued its dilatory tactics. The matter remained in the Colombian court system another fifteen years. None of these GOC promises to Congressmen and Senators to settle with SSA were kept. Even after the Colombia Supreme Court upheld the rulings of the lower courts on July 5, 2007, the GOC refused to settle with SSA or to allow SSA access to its properties, going so far as to threaten military force if SSA attempted to access its property..
October 1993: The GOC signed a contract with noted treasure hunter (and later fugitive) Tommy Thompson for US $817, 203.30. The contract was arranged by and through Fabio Echeverri Correa. The ostensible purpose of the contract was “...verification of the coordinates of the place where the San Jose galleon supposedly lies.” The tactic was to hire a credible American to say he had searched at the coordinates filed by SSA and found nothing there. The tactic had two objectives: 1) to make moot and preempt the deliberation of the Civil Court (“it doesn’t matter whether SSA has 50% or 5% of nothing”), and at the same time rally public opinion to influence the judges of the Civil Court, and 2) to gather such information at the site as might be needed to plan and execute the second stage of the project: salvage of the San Jose. SSA’s request to accompany and to observe the operation was ignored. Echeverri’s attempts to take over the San Jose goes back to 1982. According to The book, “The Lost Galleon: Where is the San Jose?” by Jorge Bendeck Olivilla, in 1982 Fabio Echeverri represented Northwest Energy, a US Company with business interests in Colombia, which attempted to take over the San Jose in that year.
December 12, 1993: El Espectador reported the contract with Echeverri-Thompson, and indicated the expedition would be undertaken early in 1994 and completed by June. The GOC assured the public that the expedition was not to salvage the ship, “but rather to locate and identify it, since the nation wants to prepare to the fullest its negotiating arguments before raising the wooden hull....” Again, the GOC approached the recovery as a private business. From its 1981-2 monitoring of SSA search activities the GOC knew as much or more about the San Jose target as SSA management. Yet President Gaviria’s Secretary General (Chief of Staff), Miguel Silva, announced in a GOC press release that it had only one piece of information, a sonar image, and had no idea what Thompson would find at the coordinates the GOC had given him. Silva is quoted as saying, “The only thing we have is a sonar print (absolutely untrue), delivered by Glocca Mora. If that is the San Jose or not we will know when the operation we have contracted for is finished, because as of this moment we have no idea what exists there.”
July 6, 1994: The 10th Civil Court of Barranquilla, after enduring four and a half years of GOC dilatory tactics and undue influence, ruled in keeping with the Constitutional Court, that SSA owned 50% of “economic, historic, cultural and scientific value which are found within the coordinates and adjacent areas.” Of equal importance, the court sequestered the site, thus ending the plan of the GOC and Echeverri to initiate salvage, that is, the Stage II it had announced six months earlier.
July 8, 1994: The GOC issued a press release which tried to put the best face on the Civil Court ruling and sequestration, which was an embarrassment to the GOC. It did not want to further alienate the courts by pursuing its plan to salvage the San Jose in the face of the sequestration order. Neither could it retract its many press releases leading up to the expedition, including the contract to pay more than $800,000 to a private contractor represented by Echeverri. Its press release published July 8, 1994 seems to be primarily a face-saving tactic intended to take some of the sting out of a defeat in court which overshadowed the Echeverri-Thompson expedition. The GOC press release implies that the GOC acted in good faith to verify its suspicion that SSA had falsified the location it had filed in 1982. Its headline reads, “GOVERNMENT SAYS IT HAS NO TRACE OF GALLEON.” The lead-in states, “Hours after a Barranquilla court ‘divided’ the treasure of the Galleon San Jose, the National Government issued a press release in which it assures that the famous vessel...is not at the coordinates where it had supposedly been located. ‘There is no trace’, assured the message yesterday from the Office of the President.” The press release does not mention the dramatic changes in navigational technology since 1981 and the fact that SSA’s coordinates were scaled off a 1: 80,000 nautical chart dated 1937. The press release includes the following paragraph:
“After nine days of work at sea, under the supervision designated by the Nation, the expedition returned to Cartagena de Indias on July 3 and presented a verbal report yesterday to the office of the President of the Republic with the results of this scientific investigation.”
The GOC press release offers descriptions of the survey area that do not match the location disclosed by SSA. Specifically, “The scientific analysis of the areas also yielded a very flat marine floor....” And, “The depth turned out to be significantly greater than that contained in the information given at the time by Glocca Morra Company (Sea Search Armada).” It is clear the Echeverri-Thompson expedition either never took place (no observers were allowed), or was sent, or went someplace other than the site SSA surveyed in 1981, 1982, and 1983. All SSA missions to the site were attended by the ever-present GOC observers. The location was also charted by the Colombian Navy. SSA delivered both still and video images of the site, which included intriguing coral formations and piles of worked wood on a slope, neither of which was mentioned in the GOC press release. The 1983 expedition collected detailed videos and still images of the woodpile and coral formation, which were shown to the GOC observers. In addition a video tape of the site prepared by SSA was delivered to the GOC in 1987, and was shown widely on Colombian television stations. The SSA site shown on the tapes clearly was not the same as visited by the Echeverri-Thompson expedition, and the coordinates shown in large print on the cover of a Spanish language report covertly placed in the judge’s chambers in 1994 did not match any of the coordinates duly filed by SSA with the GOC. All this would suggest that the Echeverri-Thompson expedition, if it occurred, was on a mission, not to survey the site known to be the location openly and frequently visited by SSA and GOC observers over a span of three years, but to support arguments that 1) SSA had filed inaccurate coordinates and was entitled to nothing, and 2) the case brought by SSA was moot, and should be thrown out.
July 15, 1994: The Presidency of the Republic signed a contract with Pacific Geographic Society (PGS) to search for treasure ships on the Serranilla Banks. With a lofty title similar to the respected National Geographic Society, the entity was to be used as the GOC’s poster child for shipwreck salvage, and, more importantly, the acceptability of the conditions then on trial in Civil Court. Ocean Sciences Research Institute (OSRI) was to be involved as a contractor to PGS. It had participated in, and reportedly helped organize, the 1989 conference in Cartagena on the recovery of the San Jose. The address for the Institute was San Diego, CA. Upon learning of the contract SSA’s Managing Director paid a visit to the OSRI’s given address in San Diego, but found no office, only a mailbox mounted atop a post by a road in a light industrial area. An examination of all offices within a block of the mailbox revealed none for either OSRI or the Pacific Geographic Society. All the terms and conditions designed by Lilliam Suarez in 1983 for the express purpose of disenfranchising SSA were dutifully accepted by the “North Americans.” They were to receive a small share, between 5% and 25%, and would supply all the risk capital, equipment and knowhow. The GOC would take the lion’s share with no risk. However, before the GOC press releases could celebrate the poster boy contract it was preempted in the media by the Civil Court ruling in favor of SSA.
November 9, 1994: Four months after the Civil Court ruling, Foreign Minister Turbay told US Ambassador Forchette he was willing to meet with SSA for settlement discussions. The GOC had promised several senators and congressmen it wouldsettle with SSA if the Civil Circuit Court ruled in favor of SSA. At the time the GOC promises were made, the Constitutional Court had already ruled in favor of SSA, and as that ruling could not be appealed, a Civil Court ruling in favor of SSA was certain unless the GOC could intimidate and coerce the judges to render a ruling inconsistent with present laws. Information discovered later proved the GOC was attempting to do just that. See June 21, 1995 for details. Knowing the Civil Court would likely rule against it, and lacking success with its intimidation tactics, the GOC made promises to US officials it had no intention of keeping. After the Civil Court ruling four months earlier, Foreign Minister Turbay told Ambassador Forchette the GOC would honor its commitment to a settlement meeting. The GOC had one small condition for the settlement: SSA must first agree to the same contract terms as the Pacific Geographic Society reportedly agreed to, including the 5% finder’s fee the Civil Court had just ruled should be a 50% property right. Thus the GOC wasn’t honoring its promise to settle, it was dictating terms that SSA must accept in advance of the meeting. Ambassador Forchette reportedly cabled the GOC offer to the State Department November 9. However, neither the State Department in DC nor Ambassador Forchette reported the offer to SSA or to the several Congressmen who had received the GOC bad faith promises. Nor did the State Department take any action on it. The GOC never made an offer to SSA. It only discussed the offer with the State Department, according to the State Department. The discussion between Turbay and Ambassador Forchette was not disclosed to SSA for six months.
November 15, 1994: The GOC issued a press release proclaiming the success of its poster child’s search for the Cordoba galleons on the Serranilla Banks, licensed five months earlier. The headline in El Espectador read: “THE CORDOVA SHIPWRECK IS ANTIQUITY, NOT TREASURE.” The GOC propaganda was clearly intended to influence the Superior Court:
“For the Secretary General of the Presidency, Juan Manuel Turbay, who also presides over the Shipwreck Antiquities Commission, the arrangement with Pacific is one of the better recovery contracts of antique shipwrecks which has been written.
“‘We are not going to see the objects from the flotilla of 1605 in Christies’ auctions, because they are a part of our history and neither will we have the inconveniences of the legal type which are being presented with the recovery of the Galleon San Jose,’ says Turbay.”
To draw the parallel between the Cordoba Galleons and the San Jose even closer, El Espectador reports from the GOC press release: “The first thing was to be very clear that the North American business could not claim ownership of the objects. Article 72 of the Constitution establishes that....”
The national patrimony recovered by Pacific Geographic Society, and Ocean Sciences Research Institute, during the heralded expedition of its flotilla to the Serranilla Banks was a grand total of: “three brass nails, a lead musket ball, and one complete and one fragment of ovular ceramics.” This inventory of artifacts has no value as historic or cultural objects, let alone national patrimony, and it has no market value, so the GOC press release was unwittingly correct in one sense: the treasure collected by Pacific Geographic Society will never be seen in Christie’s auctions. Nor do the artifacts have applicable archeological value. In particular, they do nothing to identify the Cordoba Galleons as implied in the headline. The Serranilla Bankshave collected literally hundreds of shipwrecks in the last 500 years. The artifacts could have come from any one, or several, of many wrecks. Although El Espectador reported that the contract had already entered “the operations stage” it apparently died a quiet death. No further press releases were found, and no mention was made of the distribution of Pacific Geographic Society’s share based on the carefully worked out formula for the proceeds from three brass nails, one lead musket ball, and one complete and one fragment of ovular ceramics. However, less than three months later the GOC offered to trade the Cordoba galleons found by Pacific Geographic Society for SSA’s San Jose site, straight across.
Less than a year earlier the GOC proclaimed that its contractor (Echeverri-Thompson) found that the SSA site was a flat plain devoid of treasure. Yet it was now trying to acquire the site which it had thus belittled. See below.
January 3, 1995: SSA lawyer Danilo Devis attended a meeting requested by Antiquities Committee member Rudolpho Segovia. Segovia offered to trade the GOC-owned shipwrecks on the Serranilla Banks (ostensibly the Cordoba Galleons, worth as much collectively as the San Jose) in exchange for SSA’s San Jose target, which the GOC claimed was empty. SSA did not respond to Segovia’s offer for two reasons: 1) it was not certain the offer came from Segovia personally, or from the GOC (later information strongly suggests the Commission approved of Segovia’s verbal offer in advance), and 2) nothing of value, or even evidence of a known shipwreck had been produced following the ostensible search of the Serranilla Banks
February 3, 1995: The GOC informed SSA it would not enter settlement negotiation until the courts had ruled.
June 21, 1995: The magistrates of the Superior Court issued a decree reprimanding the GOC for its continuing intimidation and threats designed to coerce a favorable decision from both the judges of the Civil Court and the magistrates of the Superior Court. SSA’s legal counsel in Washington DC, John Falk, reported the decree to the Department of State on November 28:
“The court decree ...reveals the Colombian Magistrate’s anger against the threats that the Public Ministry (Counsel for the Public Ministry represents the Government of Colombia in the pending litigation) has made against these magistrates, including ‘disciplinary denunciations if they (magistrates) stray from the path.’
“Since the Sea Search Armada litigation began the Government of Colombia has consistently applied this form of inappropriate pressure to Colombian magistrates, that has included undertaking investigations of judges who rendered the decisions in the 10th Civil Circuit Court of Barranquilla. This behavior, by and through the Government of Colombia, of judicial intimidation and threat is not only reprehensible but the clearest indication that the American citizen investors of Sea Search Armada need the assistance and support of their department of State to insure the ends of justice are fully served.”
It would appear the trust placed in the GOC’s “good faith” actions by US Congressmen was badly misplaced (see Nov. 2, 1995 letter below). The decree issued by Colombian magistrates reprimanding the GOC leaves no doubt the GOC was acting in bad faith. While the GOC was promising Congressmen it would observe the rule of law and treat with SSA in good faith, it was in fact abusing the law, attempting to coerce a false rulings from judges, and refusing to honor its word to Congressmen.
November 1, 1995: GOC Foreign Minister Roderigo Prado, and Colombian Ambassador to the U.S. Lleras lobbied Capitol Hill for more U.S. financial and military aide to Colombia. Among others, they met with Congressman Benjamin Gilman, Chairman of the Committee on International Relations, Congressman Phil Crane, Chairman of the Subcommittee on Trade of the Committee on Ways and Means, and Congressman Dan Burton, Chairman of the Subcommittee on the Western Hemisphere of the Committee on International Relations. In the course of the meetings, all three Chairmen had raised the issue of the GOC’s refusal to settle with SSA over the property it had expropriated from the American investors. Both the Colombian Foreign Minister and Ambassador promised that if the Civil Court followed the precedent ruling of the Constitutional Court and found in favor of SSA, the GOC would settle with SSA.
November 2, 1995: All three of the Chairmen (above) who met with the GOC lobbyists (Foreign Minister and Ambassador), on or about November 1, 1995, signed a letter on Congressional letterhead reminding Pardo and Lleras of the GOC promise made when they were lobbying for Congress to send additional U.S. tax dollars and equipment to Colombia. The letter stated:
“In a November 1 meeting, you and Ambassador Lleras expressed that your government will be willing to begin discussions with representatives of Sea Search Armada once a decision is rendered on the appeal pending in the Superior Court of Barranquilla. We have conveyed this fact to the representatives of Sea Search Armada...particularly our former colleague, Congressman Guy Vander Jagt...who are eager to begin these discussions.
“We trust that the Government of Colombia and the representatives of Sea Search Armada will both endeavor in good faith to resolve this matter as soon as possible.” (Emphasis added.)
July 24, 1996: Chairman Gilman wrote a follow-up to his letter of November 2, 1995, and enclosed a number of letters from other Congressmen and Senators requesting that the GOC keep its promise to settle with SSA. Gilman says, “It is my opinion that resolution of the Sea Search Armada matter presents your government with a clear opportunity to demonstrate U.S. - Colombia relations and a firm commitment to the rule of law.” (Emphasis added.) Viewed in retrospect, the GOC had no intention to 1) keep its promise to Gilman and other Congressmen, 2) deal with SSA in good faith, or 3) display a firm commitment to the rule of law.
August 26, 1996: The GOC Foreign Minister replied to House Committee Chairman Ben Gilman, “Consistent with its past declarations, the Government of Colombia will not make any decisions until after a verdict is made by the judicial....”
August 29, 1996: The Charges de’ Affaires in the Colombian Embassy in DC said the GOC “awaits a pending judgment,” and offered to meet, but made the meeting moot by specifying there would be no settlement while the matter was in Colombian courts, where GOC dilatory actions kept it for another eleven years. Moreover, when the “pending judgment” was finally delivered by the Supreme Court in favor of SSA in 2007, the GOC defied the order, refused to even discuss a meeting leading to settlement, and left no doubt that its promises to key U.S. Congressmen and Senators over the years were knowingly and willfully mendacious.
September 2, 1996: The GOC attempted to influence the Superior Court magistrates by bringing public pressure to bear through the Council of State, Chamber of Consultation. Despite its lofty title, the Chamber is little more than a handmaiden to the Colombian President. The Chamber was asked to render a legal opinion in the SSA matter. The Chamber was then briefed on the GOC’s case by the General Secretary of the President (i.e. Chief of Staff) Jose Antonio Vargas. The Chamber did not invite SSA to present its side of the case. In yet another example of the GOC respect for the rule of law, it lost no time presenting the Chamber’s “official” opinion to the media, the gist being that SSA wasn’t entitled to even a 5% finder’s fee. The GOC could keep it all. Due to the manipulation of public opinion, SSA counsel Danilo Devis felt compelled to address the Superior Court on a point by point rebuttal of the arguments advanced by Vargas via the Council of State. The Superior Court Magistrates obviously agreed with Devis when it eventually ruled to uphold the ruling by the Civil Court.
September 26, 1996: SSA’s Colombian lawyer wrote to SSA’s Washington DC lawyer that despite the decree filed by the Superior Court magistrates June 21, 1995 against the GOC the modus operandi of coercion continued. On September 26 the GOC Attorney General launched another round of threats and intimidations thinly disguised as a judicial investigation. Devis pointed out the extraordinary nature of the GOC’s desperate attempts to coerce the decision it wants from the magistrates: “I do not believe that there are any precedents in the judicial history of Colombia for the initiation of an investigation by the Procurer (Attorney) General’s office barely 7 months after the same magistrate was absolved of charges by another investigation which was practically identical, within the same suit.” Devis adds that little can be done to prevent the GOC from exploiting its conflict of interest: “...unfortunately Colombian law permits the Procurer General of the Nation to be a part of the suit (which he is), and who, moreover, may investigate the judge or the magistrates of the same suit.” The conflict of interest is obvious, as is the GOC’s willingness to exploit it to coerce a ruling it knows to be wrong.
Oct. 3, 1996: Congressman Van der Jagt informed U.S. Ambassador Frechette that Chairman Gilman et al believe that a decision by the civil court inconsistent with the Constitutional Court Ruling would not be credible to the US Congress. The Colombian Ambassador then promised Gilman the GOC would make no decision until the appellate court ruled. However, when the appellate court upheld the lower court ruling, the GOC did not keep its promise to settle with SSA, but instead appealed the Superior Court decision to the Supreme Court. Upon notice that the GOC would appeal, SSA also prepared an appeal on the matter of the handling of any treasure found outside the GOC’s Economic Zone. On this small matter the Supreme Court ruled against SSA’s appeal, but ruled for it in the larger matter of its property right.
March 7, 1997: The Superior Court upheld the Civil Court ruling in the matter of SSA v GOC. In addition, it issued a decree and reprimand to the GOC for attempted coercion of the Superior Court magistrates. The ruling in favor of SSA removed the last obstacle established by the GOC as a prerequisite for settlement, which it had promised Congressmen and Senators on many occasions.
May 8, 1997: The GOC Ambassador to the U.S. informed Chairman Gilman in a letter that the GOC will appeal the decision of the Superior Court to the Supreme Court. The GOC promise to settle with SSA is not even mentioned. After stating that nothing could be settled with SSA until the litigation had run its course (it remained before the Supreme Court another ten years) the Ambassador assured Chairman Gilman that the GOC “remains willing to discuss any relevant topics with the Sea Search Armada.”
March 11, 1997: Chairman Gilman wrote to the GOC Minister of Foreign Affairs, now Maria Emma Mejia Velez, regarding the recent decision by the Superior Court to uphold the ruling of the Civil Court, thus finding in favor of SSA. Chairman Gilman states, “In light of this ruling, and your previous communication to me dated August 26, 1996, I believe it is very important for the Government of Colombia and Sea Search Armada to resolve this matter and end the years of related litigation.” The GOC did not reply to Chairman Gilman.
1997-2007: During the ten years that the appeal was before the Supreme court a succession of GOC presidents, culminating with Uribe, attempted to influence the judges with a) public opinion, b) coercion, c) information surreptitiously gathered from the justices by tapping their telephones, and d) planting a ringer on the Supreme Court. The latter tactic involved, first, creating a vacancy on the Court, which President Uribe accomplished by appointing a sitting justice to a more prestigious government post, then appointing a replacement--a “ringer”-- who would work from inside the court to persuade other justices to overrule the lower court decisions. The appointee was a former GOC defense lawyer directly opposing SSA’s litigation. Despite the obvious conflict of interest, Uribe’s new appointee argued his case against SSA, and refused to recuse himself when his bias and background became known. Also during this period the Uribe Administration secretly and illegally monitored telephone calls to and from the Justices deliberating the SSA case. The decision to mine information from the Supreme Court using illegal means was eventually traced to the highest levels of the Uribe Administration. The investigation resulted in jail sentences for several of the officials involved, and implicated Uribe, but he was not charged. A majority of the Supreme Court eventually forced the recusal of Uribe’s “ringer,” though he continued to informally advocate for the Uribe Administration, aided by information from the wire taps.
July 5, 2007: The Supreme Court of Colombia issued its ruling upholding the lower court decisions and the legal opinions given to the GOC by its own lawyers in 1982 and again in 1983. . Despite the efforts of Uribe’s insider, the Court rendered a majority opinion (4-2) in favor of SSA, a decision that cannot be reversed or altered by any court or executive action in Colombia or anyplace else.
October 2007: The Antiquities Commission, guided by appointees of President Uribe as “Antiquities Experts,” began a strategy growing out of a GOC policy paper developed and circulated internally the third quarter of 2007. Its strategy was to steer the San Jose away from “national patrimony” and toward a commercial project involving the GOC and strategically placed political insiders who would profit immensely from President Uribe’s new policy. Two such appointees had records of earlier attempts to wrest the San Jose from SSA, and were conspicuous by their obvious conflicts of interest: 1) German Montoya was at the center of the corruption scandal for his attempts to replace SSA with “commission paying” Swedish businessmen in the 1986 to1989 time frame, and 2) Fabio Echeverri brought in Northwest Energy in 1982, and Tommy Thompson in 1994-95. Echeverri was Uribe’s campaign manager and was recognized by members of the committee as particularly influential. Once in place on the Antiquities Commission they quickly moved it in a new direction, one diametrically opposed to the national patrimony it had insisted on for nearly thirty years. Immediately after President Uribe’s latest appointments sat on the Commission, the new policy was that practically none of the San Jose was national patrimony, and therefore could be shared by private (Colombian) parties. The GOC Minister of Culture who oversees the Antiquities Commission, made the turnaround complete by declaring that it is necessary, as stated in the official minutes of the Commission meeting, “...to determine the criteria for defining what is not patrimony, with some general guidelines, and to be able to commercialize what is not a cultural asset.” Hence, the Minister of Culture says “concessions may be considered in outlines for sustainability and financing.”
March 5, 2010: Following nearly three years of GOC sophistry and delays since the Supreme Court ruling, the Managing Director of SSA proposed to President Uribe that they cooperate in ajoint recovery of the San Jose:
“As the legal representative of the company Sea Search Armada, permit me to respectfully propose a joint recovery effort, with previously agreed upon rules, of the shipwreck whose property was defined by the Supreme Court of Justice of Colombia in a July 5, 2007 ruling.
We hope to obtain your approval Mr. President, and we place ourselves at your disposal to initiate the pertinent conversations according to the policies set forth by the Supreme Court, in a ruling that honored the Colombian justice system.
“If your answer is not affirmative, or if we receive no answer within 30 days, we will take that to mean that your government is not interested in recovering the shipwreck in the proposed form. As common and undivided owners, in equal parts, of the treasures that may be found therein, we will unilaterally begin the preparations to recover that which the judicial decision declares belongs to us.”
At the end of 30 days, the office of President Uribe replied that the SSA letter cited above didn’t officially exist because it wasn’t in Spanish, the official language of Colombia. SSA’s lawyer, Danilo Devis, immediately prepared a Spanish translation and had it delivered to President Uribe.
April 27, 2010: The Legal Secretary to the President replied to SSA’s proposal “on the specific instruction of the honorable President of the Republic,” with four arguments and a threat to usemilitary force if SSA attempted to access its property. To summarize the President’s four arguments: 1) the Supreme Court ruling does not specifically compel the GOC to do something (thus absurdly giving the GOC the ultimate power of deciding when and if it wants to follow the rule of law), 2) “the legal asset protected by the Supreme Court (i.e. SSA’s target)...is the Cultural Patrimony of the Nation,” 3) SSA is prohibited from visiting its property without prior approval of the GOC, and 4) the Geneva Convention regarding submerged property on the Continental Shelf is not applicable in this case. Legal Secretary Del Castillo’s letter ends with the following threat
“Considering that this concerns the defense of the integrity of Colombian territory, as well as assets owned by the Nation, the National Armed Forces will prevent the realization of unauthorized activities in jurisdictional maritime areas....” (Emphasis added.)
April 29, 2010: Danilo Devis, after months of GOC stalling, used the threat of a decree requiring open government, obtained information which the Antiquities Commission had kept out of reach for nearly a year. Devis presented evidence from the Commission documents to the Administrative Tribunal in Bogota regarding the latest attempt of certain Commission members to take over the San Jose without SSA’s knowledge.
May 12, 2010: SSA’s legal counsel, Danilo Devis, replied to the Legal Secretary with a detailed rebuttal of the four arguments in Del Castillo’s letter of April 27. Devis’s letter concludes with the following summation.
“Ever since the Supreme Court, without affecting the exclusive rights of the Nation to its cultural patrimony, definitively resolved the litigation over the ownership of the treasures found in the shipwreck by ruling dated July 5, 2007, the attitude of the National Government and the way in which it has taken that result have been extremely hostile, making it clear that it is not disposed to permit the enforcement of that ruling, if its counterpart participates in that process. To the point of refusing even to hold a dialogue on the possibility – just the possibility – of their joint recovery by the co-owners.
“So much and such unjust hostility contrasts with the intention of the Commission on Shipwrecked Antiquities – where the oldest and most persistent aspirants to the recovery contract have seats – of entrusting a third party with the recovery, to whom the delivery in-kind is planned of up to 50% of the treasures that by judicial stipulation belong to their finder.
“What is true is that all instances and appeals of the Colombian judicial system being exhausted in its favor, without exception, and any possibility of agreement on a joint recovery of the shipwreck having been discarded by the National Government – and even any possibility of dialogue in search of that agreement – such pugnacious as well as inexplicable intransigence in the face of a judicial decision leaves no other recourse than to turn to the authorities and space offered by International Law, as the only way to assure the threatened rights granted to Sea Search Armada by the highest judicial organ of Colombia.”
August 2, 2010: The Minister of Culture, representing the Antiquities Administration (under her jurisdiction) delivered to the Parliament the bill to be enacted as the first step in the transfer of SSA’s expropriated assets to political friends of President Uribe.
August 25, 2010: President Santos took office August 7, and two weeks later retracted the bill designed by Uribe’s friends to take over the San Jose under the guise of a “contractor.” However, Uribe’s appointees remained on the Antiquities Commission, and a year later introduced a modified bill with the same intent: to salvage the San Jose through a contractor they controlled.
May 26, 2011: The Administrative Tribunal of Cundinamarca ruled against the GOC on its attempted end run around the July 2007 Supreme Court decision. In essence, the GOC tried to make moot the Supreme Court ruling by persuading the Administrative Court to nullify the 1982 action of the GOC (DIMAR) which recognized Glocca Morra's right to its find of the San Jose (prior to Glocca Morra’s transfer of its right to the partnership [SSA] it had formed). The nullification, the GOC agents proclaimed, would invalidate all the rulings in favor of SSA in every other legal jurisdiction: Civil Courts, Constitutional Court, and the Administrative Court of Bogota. In fact, the Administrative Tribunal cannot usurp the ruling of the Supreme Court; however, a ruling by the Tribunal in favor of the GOC would have provided the fig leaf to cover the planned salvage operations benefiting GOC insiders, and if SSA chose to sue on the questionable legality of the GOC salvage operations, would, with GOC dilatory legal tactics, keep the dispute in Colombian courts indefinitely. The GOC’s defeat in the Administrative Tribunal—the last legal hope for the GOC--seems to have led President Santos to reach out to SSA for settlement discussion.
June 11, 2011: Danilo Devis met President Santos at the home of a mutual friend who had first queried Devis as to SSA’s interest in settling the San Jose matter. As reported by Devis, the meeting was cordial and constructive. Both Devis and Santos agreed that it was in the best interests of both parties to conclude the settlement as soon as possible. The ratification of the US-Colombia Free Trade Agreement was to be debated in two to three months.
July 15, 2011: In keeping with the agreement between Devis and Santos, Jack Harbeston, Managing Director of SSA, wrote a letter to President Santos requesting that settlement negotiations begin.
September 6, 2011: President Santos did not answer Harbeston’s letter directly, but six weeks after receiving the letter, his Legal Secretary answered, to the effect that President Santos would no longer communicate with SSA directly, that all future communications would be through the lawyer representing the GOC versus SSA: “The Republic will not consider any further communication regarding negotiations between the G.O.C. and SSA that is sent by SSA or its representatives.” President Santos offered no explanation for reversing the position he had espoused privately to Devis only three months earlier. On the face of it, another party or parties had influenced the President to change his position from endorsing a settlement to avoiding a settlement, and to state as much to SSA in peremptory terms.
September 19, 2011: Devis sent a letter to President Santos pointing out that the legal issues to be argued in U.S. court were separate from the legal issues in Colombia, which had been irrevocably decided in favor of SSA by the Colombia Supreme Court four years earlier. Adding urgency to Devis’s letter was the imminent resubmission of a bill to the Parliament which President Santos had withdrawn as one of his first acts of office a year earlier. However, the revised bill still provided for the San Jose to be salvaged by a contractor selected by the GOC, with the contractor to be paid out of the finder’s (SSA’s) share—the same 50% share the Supreme Court ruled was the property of SSA, with the sole right to exploit it, the same as any other property owner.
October 5, 2011: Two weeks after Devis’s letter was delivered to President Santos, SSA lawyer James DelSordo spoke to GOC lawyer Ramon Marks to clarify the GOC position on settlement talks with SSA. Following a call from DelSordo a week earlier Marks had contacted his client for instructions regarding settlement. His client’s position, Marks stated, is that there can be no discussions between the parties until SSA’s lawsuit is dismissed with prejudice. He also said that once the suit is dismissed with prejudice the GOC will not guarantee that any discussions will be scheduled or that discussions would lead to any resolution of the dispute.
October 13, 2011: The GOC Minister of Culture resubmitted to the Parliament the bill prepared by the Antiquities Commission. Devis had the following comments regarding the new bill.
“I've attached a copy of the draft bill regarding Submerged Cultural Heritage that the GOC presented before Congress yesterday. If the draft bill becomes law, it will not obligate SSA to comply; based on the Supreme Court ruling, SSA is not bound to legislation created after 1982.
“I stress that SSA's case is unique. It is the only firm that is, and can be, the owner of sunken treasure. This takes into account Act 26 of 1986, which stated that after 1986, all antique shipwrecks, with or without treasure, would belong to the Nation. This clause is repeated in the new draft bill.
“The new draft bill makes significant changes to the draft the GOC withdrew last August 25. However, similar to the prior version, the new draft is based on the distinction between treasure and cultural heritage. The Supreme Court rejected the Nation's extreme opposition to this distinction and ruled in favor of SSA. Although the Nation lost the case, the distinction prevailed. The new draft bill authorizes the payment of treasure to the contractor who performs any shipwreck salvage operation.
“Among the change to the draft bill, I note the following:
- The proportion due to the contractor shall no longer be 50% (as the former draft bill stated) but now 25% (see Article 13).
- Create a Committee of Submerged Cultural Heritage (Article 19) in order to address conflicts of interest among its members. Members of the Committee of Antique Shipwrecks will be excluded from holding positions on the new committee for no less than 3 years. It appears as though Santos wants to get rid of Echeverri’s and Cia's influence on said new committee.
- Make the looting of shipwreck antiquities "that pertain to underwater cultural heritage" a crime (Article 23). This does not apply to SSA because the treasures are the firm's property and do not pertain to cultural heritage. Additionally, no one can steal his own property. It is also noteworthy that according to the Geneva Convention, Colombia does not have the jurisdiction to make criminal laws regarding treasures found on its continental platform.”
October 24, 2011: Danilo Devis reported that President Santos softened his requirement that all communications between SSA and the GOC must come through the GOC lawyer in NYC:
“In the last letter I received from Cristina Pardo (Legal Secretary to President Santos), she no longer demands that we only communicate through the GOC's U.S.-based lawyer. She also informs me that my September 19th letter "was made known to the President of the Republic and is being subjected to study and analysis." All of this indicates that the resulting response will be determined directly by the President.”
October 25, 2011: The Federal District Court in Washington, DC, dismissed SSA’s complaint against the GOC filed December 6, 2010. The reason given for dismissal was the expiration of the statute of limitations. SSA appealed the dismissal.
March 29, 2013: SSA filed a petition with the Inter-American Commission on Human Rights (IACHR), a Washington DC based arm of the Organization of American States. Colombia is a member. The IACHR was created to eliminate violations of human rights among its members. SSA’s petition claims the GOC has violated, and is continuing to violate, SSA’s human rights under IACHR Convention Articles 21 and 25, the right to own and enjoy property and the right to judicial protection. The petition was filed under the names of both SSA, as an organization of investors, and as Danilo Devis as an individual. The legal process with the IACHR is a two step process: admissibility and practice. If the suit is admitted, then it would proceed to trial. SSA also pleaded that the case be considered within the Convention’s Article 63, which mandates “payment of fair compensation to the injured party.”
April 8, 2013: The U.S. Appeals Court upheld the District Court’s refusal to admit the case to trial. Hence, the case never legally came to trial.
April 22, 2013: SSA filed a new civil case in Federal District Court, DC, based in part on the Government of Colombia’s illegal interference in SSA business.
February 17, 2015: In response to SSA's continued requests to the GOC for either settlement talks or a joint expedition to SSA's target, believed to be the San Jose, the GOC reiterated its position, this time through its defense lawyers in DC, that "...the Republic willnot consider the possibility of any discussions whatsoever with SeaSearch Armada until all cases filed by SSA against the Republic including the pending litigation matter in the United States, are definitively ended...." Although this policy conveniently overlooked the three years, 2007 to 2010, when no litigation was in progress, but the GOC still refused all SSA entreaties to implement the rulings of the Colombian Supreme Court, SSA decided to take a major risk, and remove the ostensible impediments tosettlement by withdrawing its lawsuits against the GOC in both the Federal District Court, DC, and the Inter-American Commission on Human Rights.
March 2015 to December 5, 2015: Meetings to discuss settlement began with attempts to resolve an issue left open by the Colombian Courts: the size of the area SSA was entitled to around the coordinates it had duly filed with the GOC. Thecourt had simply ruled SSA was entitled to 50% of the treasure within the general vicinity, or the "neighborhood" of its find. This allows for changes in the Global Navigations System since the 1980s, and normal variations in observations and measurements in the 1980-19823 time frame. While the GOC was ostensibly progressing in good faith toward an agreement with SSA and an expedition to the San Jose, it in fact covertly planned and executed a search for the San Jose using third party contractors. While using threats of military force to deny SSA access to its property, the GOC proceeded surreptitiously to search the vicinity of the SSA property. The GOC did not invite SSA to attend the expedition as an observer. The GOCcovert operation, while ostensibly negotiating in good faith with SSA not only showed bad faith it violated the confidentiality of SSA's location by providing the location to third parties (and not for the first time; a nearly identical event occurred in 1994-5), it violated the sequestration order of the court, which was put in place precisely to prevent such preemptive actions by the GOC, and it violated the U.S.- Colombia trade agreement whichprohibits such expropriation o properties owned 50% or more by American citizens..
Forward looking: 2016: Further litigation in the U.S. and Colombia is being considered, including a complaint to the U.S. Trade Representative, Office of Enforcement, that the GOC has violated the U.S.--Colombia Trade Promotion Agreement (i.e., free trade agreement) has merit. According to the U.S. Trade Representatives web site: “If a U.S. investor believes that the Colombian government has breached key investment rules of the Agreement – for instance, a prohibition against discriminatory treatment of a U.S. investor – then that investor is guaranteed recourse to neutral, transparent, and binding international arbitration. The web site further states, “The Colombian government cannot illegally seize U.S. investors’ property or illegally destroy the value of their investments without paying full compensation.”
END OF CHRONOLOGY AS OF DECEMBER 14, 2015
Managing Director, SSA
. In the original Spanish, “dentro de las coordenadas y areas aledanas....” Further, the Civil Court’s sequestration order, October 12, 1994, states, “...enlas coordenadas senaladas o sus vecindadas (neighborhood). As construed by the GOC in its agreement with the Swedes, the “neighborhood” would cover 100 square miles. Although the sequestration discouraged further intrusions at SSA sites by the GOC or its contracted third parties, it would have had no effect on looters.
 The cost for the expedition’s 9 days at sea came to $91,000 per day in 1994 dollars. SSA obtained a bid in 2010 for the same ostensible services (survey and map, take samples and photos, check for looting) and the bid was less than 10% of the GOC’s payment to Echeverri-Thompson. This would suggest that the vast majority of the fees were expended for other than marine operations. SSA’s 2010 bid did not include legal fees or “commissions.”
 No authenticated written report of the Echeverri-Thompson expedition was produced, nor was it verified that an expedition mobilized and searched at coordinates supplied by SSA. A Spanish language written report without attribution was surreptitiously left on a desk in the court’s chambers. Tommy Thompson disappeared without authoring a report or becoming involved in further Echeverri or GOC activities. His name was soon tarnished by accusations from a U.S. District Court judge and by investors accusing him of financial improprieties.
 To put this in context, for 25 years the GOC consistently and frequently proclaimed that all of the San Jose was national patrimony, and entirely the property of the nation. It dramatically reversed its strategy two years after the Supreme Court ruled in 2007 that SSA was entitled to half of its finds that were identified as treasure, and not national patrimony. Shortly after the Supreme Court ruling, a GOC policy paper was circulated internally to GOC staff as a means of coordinating adversarial activities versus SSA, and to control strategies to circumvent the Supreme Court’s ruling. The policy paper, untitled and without attribution, laid out the principal rulings, implied interim methods of obstructing their implementation, and closed by recommending that the Supreme Court rulings be the subject of “A detailed study...with interdisciplinary support coordinated by a group of lawyers...at the time of formulating the Subaquatic Patrimony Law Project.” (Emphasis added.) In 2009 that “project” was completed and ready to implement. President Uribe appointed several cronies to take over the Antiquities Commission and move aggressively to screen out SSA and take over the San Jose. See October, 2007, below.
 “The specific instructions of the honorable President” to his Legal Secretary on this subject are in keeping with the GOC strategy up to 2010 to disenfranchise SSA by claiming that 100% of the shipwreck was national patrimony, and therefore belonged to Colombia, who would warehouse it in perpetuity. However, several influential Colombians who had long coveted the San Jose, as documented elsewhere in this chronology, were appointed to the Antiquities Commission by President Uribe, and quickly “persuaded” other Commission members that $3 to $10 billion in gold from other South American countries stored in a Colombia museum forever wouldn’t benefit anybody. From the new viewpoint of enlightened self interest, Commission members could think of better uses for gold than to remain in storage forever. The Commission thus chose to immediately, and without explanation, contradict the position it had espoused for 30 years. The new position of the GOC was that none of the ship was patrimony, but entirely treasure, and need not be locked away but shared between the Nation and a third party Colombian contractor, who would be compensated solely from SSA’s share, up to and including all of it. This dramatic and self serving change is evidenced in 1) 2009 and 2010 minutes of meetings of the Antiquities Commission, and 2) the bill introduced in Parliament by the Commission in August, 2010. However one of the first acts of President- elect Santos in August, 2010, was to retract the bill.