MOD admit – we know charity can’t protect HMS Victory wreck

HMS Victory 1744 Wiki Commons

Heritage Daily can reveal a stolen cannon remains in limbo in a Dutch museum tank as MOD Officials admit they knew the Maritime Heritage Foundation had no financial or legal capability to protect the HMS Victory site once the British Government gave up ownership

For over two hundred and fifty years since she sank in a storm in October 1744, the wreck of historic Royal Navy Warship HMS Victory and the remains of over one thousand Royal Navy sailors, including her Commander, Admiral Sir John Balchen, were protected by the cold waters of the English Channel and the International Law of “Sovereign Immunity” which made it illegal to touch or take any part of the wreck or its contents without the express permission of the British Government.  However, in the latest twist to the HMS Victory saga a senior official of the Ministry of Defence has admitted that the remains of the ship and her crew were gifted to a brand new charity, chaired by a senior Conservative Peer, which the MOD knew did not have the legal or financial resources to protect the ship from predatory salvage companies.

Heritage Daily has learned that in January 2012 the Cameron Government and in particular Defence Secretary Philip Hammond, knowingly threw away the protection offered by Sovereign Immunity and left the wreck of HMS Victory and her crew to the mercy of commercial salvage companies like Odyssey Marine Exploration Inc. of Tampa Florida which found the Victory in May 2008 and which is seeking to exploit the wreck to make money for its investors.

This appalling misjudgement is revealed in a letter from the Deputy Command Secretary at Navy Command Portsmouth, Mr Simon Routh.

Writing to the independent experts of the Joint Nautical Archaeology Policy Committee [JNAPC], Mr Routh admitted that the Ministry of Defence handed the wreck over to the Maritime Heritage Foundation; a charity chaired by Conservative Peer Lord Lingfield, before the charity had developed the level of financial resources required to protect the remains of HMS Victory and her crew from unscrupulous commercial salvors in the Courts.

Mr Routh confirmed the Ministry of Defence had washed its hands of responsibility for protecting the site stating…

• That it was up to Lord Lingfield’s penniless charity “As owner of the wreck…to avail itself of all the legal avenues open to it [to protect the wreck]“.

But at the same time Mr Routh also admitted that the Ministry of Defence were fully aware that the charity is a…

• “… newly-formed body and it was recognised that it would require time to establish itself, develop income streams and to build capacity”

In effect, since the charity has yet to develop any income streams or resources which are independent of its commercial partner, which happens to be Odyssey Marine Exploration Inc, the Ministry knowingly left HMS Victory defenceless in the face of anyone who wishes to make money from the remains of the ship and her crew, because the charity would have to absorb huge legal costs to protect the wreck in the UK Courts and potentially also abroad.

It is not as if Mr Routh and the Ministry of Defence were not warned what was likely to happen once the Maritime Heritage Foundation took over responsibility for the ship.

Having had the existence of the site confirmed by Odyssey at a lavish Press Conference at Canary Wharf in February 2009 and with the wreck’s location confirmed by the presence of the company flagship the Odyssey Explorer working on the site, it was no surprise when a Dutch Salvage vessel illegally lifted a cannon from the HMS Victory wreck site in the Autumn of 2011.

As Heritage Daily revealed recently, an e-mail released under the Freedom of Information Act shows Lord Lingfield telephoned Mr Routh as soon as the theft was discovered and explained that the Chief Executive Officer of Odyssey, Mr Greg Stemm, was furious at what he claimed was a theft from his site and was threatening the Dutch salvors with legal action under what he claimed were his rights as “salvor in possession.”

This was a legal nonsense because at this point the Ministry of Defence and Mr Routh still had full responsibility for HMS Victory her crew and contents under International Law and, as the Ministry of Defence has acknowledged, Odyssey could not legally have been “salvor in possession” of a Crown wreck entitled to sovereign immunity.  However, instead of telling Odyssey mind its own business and instructing Government Lawyers to start proceedings against the Dutch salvors, Mr Routh decided to keep the matter quiet and asked Lord Lingfield to “rein in” Mr Stemm while he undertook to sort out the issue through contacts.

The Ministry of Defence’s apparently uncaring attitude and attempts to sort out back channel deals on the quiet is in stark contrast to the very public actions taken by the Spanish Government to protect its rights and its lost ships and sailors, when Odyssey illegally removed over seventeen tons of silver coins from what it knew to be the wreck of the Spanish warship Nuestra Senora de las Mercedes.

In spite of Odyssey flying the coins to Florida via Gibraltar to place the treasure under the jurisdiction of the US Courts, the Spanish Government immediately took on Odyssey and, in spite of the increasingly desperate arguments placed by Odyssey’s legal team which extended to arguing there was no shipwreck on the Mercedes site in spite of the fact Odyssey had originally announced that there was and that the company had recovered parts of the ship as well as the coins, the coins were all returned to Spain in February 2012.

Odyssey received no compensation [except for the value of the plastic buckets it kept the coins in].

It seems that for Mr Routh and the Ministry of Defence, HMS Victory isn’t even worth the price of a plastic bucket, as critics argue the Ministry is clearly more concerned with saving money and not upsetting its cosy relationship with Odyssey Marine Exploration and Lord Lingfield; a senior member of the Conservative Party and associate of Culture Minister Jeremy Hunt and Prime Minister David Cameron; than with defending the rights of Great Britain over one of its most famous warships and the remains of her crew.

HMS Victory was gifted to the Maritime Heritage Foundation in January and almost immediately, Lord Lingfield proceeded to demonstrate Mr Routh was right and the Foundation had no capacity to assert its legal rights and duties.  A letter released under the Freedom of Information Act reveals that on 7February 2012 Lord Lingfield asked Mr Routh what steps he should take to recover the stolen cannon for the Maritime Heritage Foundation.

Meanwhile the cannon remains the property of the British Government and it is understood to be occupying a tank of water in Holland.  Negotiations are believed to be still under way regarding its repatriation.


Written by Andy Brockman

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Andy Brockman

Andy Brockman

Andy Brockman[ ] is director of Operations Room Archaeology [the Op’s Room] and the Digging Dad’s Army Project and is a specialist in the Archaeology of Modern Conflict. He has a particular interest in community based projects which involve research into archaeology within living memory and supports Operation Nightingale, a British Army initiative to use archaeology to help rehabilitate injured servicemen and women.

  • Graham

    You say that the wreck was previously protected by the law of Sovereign Immunity. I understand however, that before it was discovered by Odyssey and reported to the UK government,the wreck of the HMS Victory was at the mercy of time, the destructive forces of the sea, catastrophic damagr from sea bed trawling by fishermen and the risk that it may have been discovered and completely plundered by those who would not have reported the find at all.

    What in a practical, rather than hypothetical legal sense do you mean by protection?

  • heritagedailyuk

    Thanks for your comment Graham,

    The situation is that the only evidence for the HMS Victory wreck site being in danger from trawling comes from Odyssey's own surveys.

    We have to be sceptical because Odyssey has a financial interest in showing the site is in danger and must be excavated.

    When Wessex Archaeology looked at the site on behalf of the UK Government they found the evidence for recent damage was inconclusive.

    That is why archaeological best practice and the UNESCO convention, calls for monitoring as part of the management of the site. It may be necessary to recover surface finds to a museum or even excavate, but the independent evidence required to endorse that course of action does not exist yet.

    In addition, as Heritage Daily has shown, it was Odyssey's publicity and activity on site, not the Wessex Report, which placed the site in danger from other commercial salvage efforts.

    The latest article simply points out that until the site was gifted to the Maritime Heritage Foundation in January 2012 HMS Victory and the remains of her crew were protected under International Law. Anyone from anywhere interfering with the wreck without the permission of the UK Government was committing an offence-period.

    The site can be monitored using AIS and other imaging techniques and the waters are patrolled by Royal Navy and French fishery protection and coast guard vessels and aircraft to name just two nations with an interest.

    As viewers of the "Treasure Quest" infomercials will recall during the "Legend" programme on Victory, a warship is seen in view of the Odyssey Explorer and the OMEX vessel is overflown by a French Air Force Atlantique maritime reconnaissance aircraft.

    Also we must point out the Dutch vessel was caught- the cannon they lifted is now in custody-not earning the salvor money in an auction house or metal smelter.

    It cost Odyssey millions of dollars to defend the Mercedes case in the US Courts and they lost at every turn.

    The question Heritage Daily poses is what salvage company is going to risk that kind of cost and almost certain defeat, if it knows a Government will defend its rights under sovereign immunity.

    In the end it is perfectly possible to protect these sites. Fundamentally it is dependent on the will to do so.

    Posted on behalf of Andy Brockman

    • Graham

      I am an Officer in one of the agencies that you imagine 'can protect' a wreck at the bottom of the English channel, while those who don't have the means to do so, debate over whether it's at risk or not.

      Let me tell you in no uncertain terms, we do NOT have the resourses to mount a 24/7/365 hour guard in the middle of the English channel, let alone stop migrants, drugs and god knows what else from getting into the country. Perhaps we could do it while we provide security for the Olympic Games too and fight in Afganistan as well? Where do you think the money, resources and manpower will come from? An RAF Sea King helicopter costs £7,000 per hour to fly. The agencies to which you refer are being decimated and have FAR higher priorities.

  • Graham

    Additionally, your knowledge of AIS is woefully inadequate if you think that a site can be monitored using it – criminals are hardly likely to transmit their location whilst lowering their grab buckets. As for the destructive power of the Ocean and the activities of fishermen, how do you prevent that? You blame Odyssey for the release of the location of the site, but in truth, whoever discovered the Victory would have had great difficulty keeping the location secret once the exploratory visits to the site became frequent.

    I put it to you again, how IN PRACTICAL TERMS will you protect this site? You're very good at saying what shouldn't be done, while providing nothing but ivory tower generated platitutes in return.

    Just like medicine and art and every other area of human endevour, archaeology can work for profit. Once it does, you will be left behind, and that in essence is the truth of your objection to Odyssey. I'm sorry to sound so militant, but your short-sighted, selfish attitude will consign the rich historic herritage of our country to a watery grave.

  • Steven Warren

    wow,that is way too much to go through,to get a cannon…and to avoid legalities? or just the liabilities?by the time all the paperwork is they could have spent as much as the cost of the entire retrieval.Though cannons of that time can carry a sentimental "personality"with them…might ask him what nationality he prefers.

  • heritagedailyuk

    Dear Graham,

    Firstly Heritage Daily and I have not set out to offer definitive solutions to conservation and management of HMS Victory. That is not our job.

    The articles about HMS Victory have been designed to offer news and analysis of what may well turn into one of the most serious heritage scandals of recent years.

    Because of the secrecy and misinformation which surround this story we have also tried to present information which the British Government, Odyssey and the Maritime Heritage Foundation would probably rather you did not know; but which anyone who cares about the conservation, management and presentation of our shared heritage on land or sea needs to know.

    We also feel this material will be of use to Odyssey's investors.

    As I am sure you are particularly aware, Heritage Daily is followed on the Yahoo Financial message board regarding OMEX, where it is clear that very few investors are aware quite how thin the evidence for bullion aboard HMS Victory is and quite how circumscribed Odyssey's freedom of action is by stated UK Government policy and the mechanisms set up to manage the wreck which are led by independent expert maritime archaeologists, historians and lawyers, not Odyssey or the MHF.

    As we pointed out in the investigation, the Ministry of Defence recently confirmed to the Maritime Heritage Foundation that it did not accept Odyssey's definition of "Trade Goods," and "Personal Property" and that the vessel had the same status as Nuestra Senora de las Mercedes; that is she was a sovereign vessel going about Government business. The MOD also stated that the site had to be regarded as a single archaeological entity which means Odyssey will not be allowed to cherry pick what items it lifts if it is allowed to lift any.

    I can also tell you that many individuals and organisations who are qualified to attack this problem have been spurred on by the mishandling of the HMS Victory wreck site to the extent that they are now engaged creating just the kind of practical management and conservation solutions you are asking for and we will report those as we will continue to report the activities of Odyssey Marine Exploration and the Maritime Heritage Foundation.

    Our reporting acknowledges that the vast majority of the worldwide archaeological community and international organisations such as UNESCO, do not believe a site excavated for profit with funding provided in part or whole from the sale of artifacts as Odyssey and the MHF proposes to fund the Victory project, represents archaeology in any legitimate sense.

    This is not a view from the dizzy heights of an academic ivory tower. It is a view derived from the experience of thousands of hardworking, committed, often underpaid and over worked, archaeologists working in communities all over the world. Many of us spend a depressingly large amount of our time trying to prevent the theft of the past to feed the private antiquities and collectors market. Our practice leads us to believe a for-profit approach to the past encourages looters by boosting the market for artifacts and antiquities, but also it inevitably limits and distorts our knowledge and perception of that past by falsely equating cultural value with financial value.

    For-profit excavations; the mining of history; must inevitably concentrate on sites which can turn a profit for stock holders, rather than those which offer the most important information for our collective national and international archives. There are better preserved and arguably more historically important 18th century shipwrecks than HMS Victory such as HMS Stirling Castle on the Goodwin Sands, but Odyssey is not seeking to excavate her; why? Because there is no rumour of treasure aboard the Stirling Castle which can be used to build the appearance of an investment opportunity in the media.

    To put this in perspective. Under Odyssey's business model the tomb of Tutankhamun would not have been excavated because the company would not have been allowed to sell artifacts and the site could not return 10x profits after costs. [That figure is not made up- it comes from the brochure of Odyssey's business partner Robert Fraser Marine.] Neither would we know anything about our early ancestors in Africa who inconveniently did not pass on unsourced gossip about bullion in the Amsterdamsche Courant.

    In other words the Odyssey/MHF contract is simply a treasure hunt for Odysseys investors, however smartly it is dressed to look different in a cloak of technology, publications, museum exhibits and television infomercials.

    As to protecting the site. Of course AIS is not a complete answer, although it was deemed useful enough to be monitored by Odyssey to the same end as I suggested, as Odyssey Papers 24 discusses.

    Equally, the agencies in coastal powers have a range of priorities and limited resources as you so rightly point out.

    Posted on behalf of Andy Brockman

    • Russ

      It would seem to me that any company in Odyssey's position would do everything in its power to demonstrate its skills at deep water archaeology. This is a new field, and, if Odyssey messes up, it would be bad for the company's future prospects in this field. You argue that Odyssey has no interest in getting it right. Supposedly, all they have is a profit motive. I disagree. The only profit that is certain for them is (1) the recovery of their expenses (which includes the use of their ship, the Odyssey Explorer) plus (2) 50-80% of the fair value of what they recover and (3) film/publishing rights. This is not likely to impress investors. The fact is that Odyssey is likely to be paid completely in cash, not artifacts. The rumor of gold is just that. Although Odyssey's investors would welcome the recovery of gold, they are hardly counting on it. A lot of Odyssey's stock is held by institutions, which have plenty of other places they can invest their money and are not likely to hold Odyssey's stock on the strength of a rumor. Your article describes a company that is interested in only one commission, the Victory, and has little concern for future commissions. This is not Odyssey.

      If Odyssey were to plunder the Victory or badly mess up the archaeological study of it, as you allege, I don't think it is very likely that they would soon, if ever, receive another commission. Yet, their business model counts on their performing their task in a professional manner. They have archaeologists on their staff who have already published a paper on some of the survey work done thus far. I would assume that these archaeologists are establishing a paradigm for such work because land-based methods would have to be modified/enhanced for use in the deep sea. Your article insinuates that the archaeologists who wrote the paper may have made up a story about the existing dangers to the Victory, but you provide no real evidence that they did so. The inconclusive findings from Wessex (which I haven't seen) are just that: inconclusive. If there is suspicion that a conflict of interest might bias Odyssey's report, it is not Odyssey's role to obtain confirmation from an independent source. Odyssey established a benchmark with their earlier study of the Victory site, and they used this benchmark to reveal subsequent damage. I don't see any other way to obtain this information unless it is for an independent group to review the same evidence and come up with their own conclusions. Odyssey's before and after photos look pretty clear cut.

      You seem to have formed a negative opinion about Odyssey based on their loss of the Black Swan case to Spain. Apparently, you have no deep familiarity with the case and are relying on what Spain has has to say about it in the press. The fact is that the outcome was determined by political considerations that have nothing whatsoever to do with the merits of the case. The Circuit Court found that cargo and vessel cannot be separated for the purposes of determining sovereign immunity. They gave two arguments in support of their finding.

      First, the Court presupposed that Spain had title to the cargo under dispute. Under this assumption, none of the exceptions to sovereign immunity could come into play. However, the Court's assumption was false. The contested cargo was privately owned, and the heirs, siding with Odyssey, had come forward to claim their rights.

      Second, the Court argued that sovereign immunity should extend to vessel and cargo (regardless of who holds title to the cargo) based on the principle of comity. However, it is improper to assert comity if doing so means that the Court has to violate U.S. laws governing the rights of foreign countries in the matter at hand. If this were common practice, such laws would serve no purpose. In this case, the Foreign Sovereign Immunities Act governs the rights in question, and it specifically provides for certain exceptions to sovereign immunity in order to prevent its being abused. Under the Court's rationale, it was proper for them to eliminate one of the exceptions in the Act (the one Odyssey cited) based on comity, and to set a precedent for doing so for all of the other exceptions as well. This is referred to as making law, which is the province of the U.S. Congress, not of the judicial branch of the U.S. government.

      It is Spain, reacting to the Court's decision, which has accused Odyssey of wrongdoing. The Court did not do so.

  • heritagedailyuk

    But I return to the points I made in response to your previous post-

    The only evidence the Victory site is in danger comes from Odysseys own surveys. Independent evidence from Wessex Archaeology was inconclusive and Odyssey has a conflict of interest which means its assertions have to be independently verified.

    Sovereign Immunity can be enforced if there is a political will as the Spanish have shown. Odyssey will have crossed any sovereign Spanish vessels off its high value wrecks list for the foreseeable future.

    The Dutch salvors were caught and the stolen cannon was confiscated by the Dutch authorities. That action involved the UK, French and Dutch authorities, albeit acting in an uncoordinated way. The French involvement came about because French customs officials boarded and searched the Dutch vessel for drugs- a primary task of such agencies as you correctly point out.

    English Heritage is currently developing links and common approaches with law enforcement agencies in other jurisdictions with a view to making such actions more effective in future. Indeed, as a small part of that effort I have sat in a seminar with colleagues from the Dutch Heritage Agency and Law Enforcement where we discussed how to deal with these admittedly difficult issues of cross border investigation and protecting sovereign shipwrecks located outside territorial waters from predatory treasure hunters and commercial salvors. .

    I would also make one final point, which is purely about ethics and morals.

    As someone who works alongside injured service people on Operation Nightingale and has friends in the Police and Armed Forces who have been made redundant or have taken early retirement under the UK Government austerity programme I can understand the anger and frustration of anyone involved in those Services and Agencies faced with the current climate of cuts, short termism and increasing demands placed on limited human and material resources.

    However, and here I also speak as the grandson of a Royal Navy CPO who was drowned on active service in 1943; many people, including many in the Armed Forces and many serving and retired mariners, believe there are some things which are more important than profits for a few and respecting the graves and memorials of our service men and women and those lost at sea is one of them.

    As we saw in Mr West's letter to "The Times", a direct descendant of Admiral Balchen who died on the Victory is appalled that the Admiral and his crew are seen as a source of profit for a commercial salvage company.

    As a nation we might sometimes choose to excavate and record historically important wrecks, especially those which can be shown to be genuinely under threat, in the public interest. That is how the Mary Rose excavation came about. However, If we as a nation allow Odyssey, or anyone else, to profit from the sale of material from our historic shipwrecks which are graves and memorials, we might just as well also sell off the metal from our village war memorials or the mass produced "trade goods" like toothbrushes, spoons and tin mugs, which are found on the bodies of soldiers on the Somme or around Ypres. An action the historian Andy Robertshaw has likened to "killing them twice."

    Posted on behalf of Andy Brockman

  • John R Reztrehcs

    Andy, It was with interest that I read your article but I soon saw that you are a “loony” who unfortunately has a important job. Do you not realize that the best outcome for the Victory and its contents are an immediate start of recovery/archaeological procedures by Odyssey. They are your friend not your foe. Can you not see that? Would you like more Dutch thieves to loot your precious wreck or even anyone else who can dive to 100M?  You can not see the forest in front of your face. I hope responsible people finally give the get go to have Odyssey start this procedure. I would like to see these artifacts in a UK museum for all to see, not a Dutch warehouse to be seen by no one.

  • tonyblairspoorerbrother

    @John R Reztrehcs  Sadly, Odyssey are not doing ths for altruistic reasons, but to sell off the artifacts they recover!! Those involved in this shabby deal should be prosecuted, Lord Lingfield included!  It’s a military grave site, for God,s sake!