A Treasure Hunters Tale
wreck on the US West Coast...
By Bill Manson - San Diego Reader
James Nesbit, the editor of the San Francisco Bulletin, sat quietly on deck, writing. He made out a will. He wrote notes to loved ones. He wrapped the documents in oilskin and tied them to his body.
Captain Samuel De Wolf shouted across the waters to Jacob Yates, his quartermaster, "Tell them if they had not overloaded us, we would have got through all right, and this would never have happened !
Then the 20-foot swells lifted the paddle wheeler Brother Jonathan off the submerged rock she had struck and broke over her. It was 2:30 in the afternoon on July 30, 1865. Brother Jonathan went straight to the bottom. Yates and 18 others survived, thanks to the one seaworthy lifeboat. Nesbit, Captain De Wolf, 204 passengers and crew, and two camels on their way to a circus in Oregon drowned on the surface or went down with her.
So did four boxes of gold.
It's not the Titanic, but 132 years later, Brother Jonathan remains the worst human disaster in California's maritime history. It's also the richest underwater treasure on the coast. Now the spotlight is on those four boxes of gold, valued upwards of $100 million. The battle over who owns it -- the salvagers or the State of California -- has reached the U.S. Supreme Court.
Two key members of the salvage group are San Diegans. David Flohr of El Cajon, a retired Navy pilot and one of the partners in Deep Sea Research (D.S.R), a consortium that found the wreck 4 years ago after 20 years' search, is heartsick about the whole thing. "I've been 7 years on this project," he says. "This is an outrageous usurpation of private citizens' rights. We had no idea that the State of California would be as intrusive as it has been," he told the Journal of Commerce, a Sacramento-based paper, last summer. "It's been a nightmare for us."
In the State of California v. Deep Sea Research, the case being considered by the Supreme Court, DSR faces a state suit buttressed by friend-of-the-court briefs from 15 other states and 10 historical preservation societies. In the case, which could define future rules of salvage nationwide, state authorities are pitting California law against federal law, and challenging the traditional rights of salvagers. California claims ownership to any and all wrecks on its coast, in the interests of preserving history.
And when it comes to shipwreck history, California has it. The state has harvested a rich collection of disasters, from Manila galleons to lumber ships to tankers. Sixteen hundred relics are said to be strewn along California's 1000-mile coastline; 450 of them off the state's northern sector. Till now, most wrecks were too deep, in waters too cold and currents too strong for sunken-treasure hunting. But not with the new robotic technologies that have come along. That's why the state wants to wrest control from the treasure hunters and the pro-salvage admiralty laws while it can. Brother Jonathan is the test case.
"[Brother Jonathan] belongs to us now," asserts California's state land commission attorney Peter Pelkofer. "So all [the salvagers are] getting is whatever we're willing to give [them] for bringing it up."
Flohr's colleague, Dr. Willard Bascom, a La Jolla-based oceanographer who is documenting the Brother Jonathan salvage saga in a book, doesn't dispute that their primary goal was treasure, not historic preservation. "Yes, we're after the gold that's on the ship," he admits.
The question remains: how much gold is there ?
Legends abound -- that she was carrying 1.5 tons of gold bullion to pacify Northwest Indians under a treaty; that she was carrying $250,000 in pay for soldiers based at the Columbia River (probably in greenback dollars, not gold); that she had gold destined for the Canadian government.
Brother Jonathan was also rumored to be carrying $140,000 to be couriered north by a Wells Fargo agent, money for northwest fur traders, and 346 barrels of whiskey. Newspapers reporting the sinking said the cargo was worth $48,112. Flohr reckons in today's values, it's worth "anything from $50 million to $100 million."
DSR claims to have spent "over $1 million" looking for the old steamer. Part of the reason for the expense is the conditions. "They're extremely difficult," says Bascom. "The water's very cold. There's a steady current up there. The surface conditions are really volatile. There's a strong surf. They can only work for a month out of the year at most.
On October 1, 1993, DSR's minisubmarine finally achieved what an estimated 45 previous expeditions had failed to do: it located Brother Jonathan 260 feet down, in murky waters ten miles northwest of Crescent City, near the California-Oregon border. They plucked a few items -- a porcelain plate, a black wine bottle, a medicine bottle -- to use as proof to the federal district court that they had found the old paddle-wheeler. With that proof, they could lay the traditional salvors' claim to ownership.
It took another three years' searching to confirm that gold was aboard. "There are almost certainly about four boxes of it," says Willard Bascom. "The question is, exactly where in all this pile of wreckage is the gold? [Last year] we had submarines down diving on it. One day a guy surfaced, saying, 'I think I saw some gold coins lying on the bottom.' So we said, 'Okay.
Go back down again with the submarine and stay on the site there with the light pointed where you think the gold coins are, and just wait there.' The sub was back up in ten minutes. They said, 'We couldn't see a thing down there. The visibility was terrible. We could see the divers were there, and they were busy doing something.'
"But the divers had to take an hour and a half to decompress on the way back up. So somebody says, 'Gee. I'll look in the saddlebags.' These small submarines have bags on them, something like saddlebags on a horse. So he climbs over and tosses one on the deck. And everybody crowds around it, and finally somebody opens the bag, and it's jammed with gold !"
Bascom won't tell how much they brought up that day in September 1996. "That's still classified. But there was a lot. Twenty dollar double-eagle gold coins minted in San Francisco. Most were brand new. A single 1865 double-eagle coin would sell today for around $30,000. The stuff was brought to San Francisco, cleaned up, and it's in a bank there, under the supervision of a federal judge named Louis Bechtle. Everything that's been done has been according to what Judge Bechtle said he wanted done."
But the State of California recognizes none of this. It lays total claim to Brother Jonathan. The resulting legal tussle highlights a national issue: Who do coastal wrecks and their contents belong to? The salvages or the State of California ?
"The last great museum of humankind is the ocean floor," says James Delgado, who runs Vancouver's Maritime Museum and who wrote the application to have Brother Jonathan listed in the National Register of Historic Places. "Exploring it should not be left to entrepreneurs."
The state got teeth for its claims in 1987. That year, coastal states pushed the Abandoned Shipwreck Act through Congress. The law gives states claim to all shipwrecks that are 1) in state waters, 2) abandoned, and 3) embedded in the sea floor or rate a listing in the National Register of Historic Places. But problems have stemmed from defining those three conditions, especially on the question of when a ship can be considered abandoned.
Fletcher Alford, DSR's lawyer since 1993, says that what the law has given state lawyers is an attitude problem. "We worked very hard to try to negotiate with them, and they were completely implacable in their position. We had to acknowledge and admit that the wreck belongs to the state of California. We had a problem with that, since they didn't even know where it was located, and they never lifted a finger to help us find it or recover it. And they would not participate in any of the expenses or cost or risk of recovering it, but they would take 50 percent of the [treasure] -- off the top -- and we would have to pay for a cadre of state bureaucrats to sit around and supervise our work, and we were not willing to do that."
"They are treasure salvors. They are not archeologists," says state land commission attorney Pelkofer, justifying the need for state oversight. "We do not consider whatever they did out there in any way archeology."
"Where is the state's evidence to back up its continuing claims that we're going to rape and pillage this wreck?" says Alford. "That's a Chicken Little 'The Sky Is Falling!' argument. It hasn't happened. The state feels that unless it is in charge, there's no way the thing is going to be done right. Yet there's not a shred of evidence to support that contention. In fact, all the evidence is uniformly to the contrary. And existing [federal] admiralty law provides for that in the sense that it gives a built-in incentive for the salvor to do the right thing: the district judge has wide discretion in deciding how much of an award to give the salvor at the end of the day. There are many cases on record in the federal district courts in which the district judges have completely denied any award whatsoever to salvors the district judge felt were not adequately sensitive to archeological and historical considerations."
When David Flohr and his partners lost patience with the state and filed federal suit in rem (an old legal custom of "suing the ship" to assert a claim over it), and the State of California intervened, DSR won federal recognition of their claim to the Brother Jonathan, largely because the state couldn't prove Brother Jonathan had been abandoned.
But the state persisted. Having lost through two federal hearings and an appeal, it managed to tweak the interest of the Supreme Court, which accepted the case last July. It was a signal victory for the state. The top court only accepts 200 to 300 cases of around 4000 to 5000 requests each session. When the court heard from both sides in early December, according to Joseph Rusconi, the deputy state attorney general in Oakland who spoke for California before the justices, they returned to that key question at the heart of the state's claim to own Brother Jonathan:
What did California consider "abandonment" to mean ?
"Our position was that the Brother Jonathan had lain at the bottom of 260 feet of water for 130-some years," says Rusconi, "and that the original owner is no longer in business, and that [therefore] the vessel and all its cargo is abandoned -- general maritime law has always been that abandonment can be found through the long passage of time and the failure of the owner to salvage the vessel. Justice [Antonin] Scalia did not seem to be happy with such a definition, but many of the other justices did. I really can't give you any insight as to what
they're going to do with the case."
One intriguing possibility: the court might question the constitutionality of the Abandoned Shipwreck Act.
Alford says that meanwhile, the state should see DSR as a friend, not enemy. "We're the ones that are bringing this [ship] up. We're the ones who are making it accessible to the public. We've got items on display at the Del Norte Historical Society Museum [in Crescent City], where people can look at and enjoy them. We've recovered a lot of interesting historical artifacts -- clothing, cargo, pottery, wine bottles still corked and full of wine, and quite a number of gold coins...." He pauses. "And if we don't recover [Brother Jonathan's gold], someone else will, without any kind of restrictions at all. That's happened up and down the coast of California. There's a long and sordid history of wrecks being pillaged by covert operators, and the state has proven completely powerless to stop it. This is the richest wreck on the West Coast. You don't think someone's going to go out there and find it, and tear it apart to look for gold ? I guarantee you they will."
Agreement On Treasure Of Lost Ship Is Ratified !
Deep Sea Research, treasure hunting company that found wreck of Brother Jonathan, ship that sank off California coast in 1865, reaches accord with California that will let it keep over 1,000 gold coins it recovered; accord, ending long court battle, will let company continue retrieving objects and keep 80 percent of what it finds; state will get 20 percent of take and have expert on board salvage ship to supervise recovery of historic items...