Treasure Salvors v. Unidentif. Etc. Sailing Vessel

• Decision Date: 18 January 1983
• Docket Number: 80-1205-Civ-JLK.,No. 79-1381-Civ-JLK,79-1381-Civ-JLK
• Citation: Treasure Salvors v. Unidentif. Etc. Sailing Vessel, 556 F.Supp. 1319 (S.D. Fla. 1983)
• Parties: TREASURE SALVORS, INC., a Florida corporation, Plaintiff, v. The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL, et al., Defendant. Robert JORDAN, Plaintiff, v. The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL, et al., Defendant.
• Court: U.S. District Court — Southern District of Florida

556 F. Supp. 1319

TREASURE SALVORS, INC., a Florida corporation, Plaintiff, v. The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL, et al., Defendant.

Robert JORDAN, Plaintiff, v. The UNIDENTIFIED, WRECKED AND ABANDONED SAILING VESSEL, et al., Defendant.

Nos. 79-1381-Civ-JLK, 80-1205-Civ-JLK.

United States District Court, S.D. Florida.

January 18, 1983.

COPYRIGHT MATERIAL OMITTED

David Paul Horan, Key West, Fla., for plaintiff.

Michael T. Callahan and Ronald W. Brooks, Brooks, Callahan & Phillips, Tallahassee, Fla., Gerhardt Schreiber, Linwood Anderson, Smathers & Thompson, Miami, Fla., for defendant.

MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW

JAMES LAWRENCE KING, District Judge.

The ultimate fate of the SANTA MARGARITA, a royal galleon of the Spanish Tierra Firme Flota of 1622, is the subject of this opinion.

As this magnificent six hundred thirty ton galleon cleared Havana Harbor on Sunday, September 4, 1622, she carried one hundred eighty-eight persons on board, one hundred forty-three of whom sailed to a rendezvous with death in the tragedy to follow.

The SANTA MARGARITA also carried a treasure of gold and silver ingots, bars, disks, coins, chains and precious jewelry of such magnitude as to be almost beyond the imagination of modern man.

1. FINDINGS OF FACT

THE SHIPWRECK

The drama that unfolded during the trial of this case commenced on a clear and beautiful day 360 years ago. Dr. Eugene Lyon¹ described it thusly in The Search for the Atocha:¹

"Sunday, September 4, 1622. Slowly and majestically, flying all their flags, the ships of the combined fleets passed one at a time by El Morro at the Havana harbor entrance. With Guard Fleet galleons and escorts, Tierra Firme vessels and small craft, twenty-eight ships filed out into the open sea. They sailed a good six weeks behind schedule.

"At dawning the day had been so serene, so clear, that Lorenzo Vernal and the other pilots had unanimously recommended that the fleet sail. If the morning before the conjunction of September were so fair, what possible danger could the next day bring? When he heard the pilot's recommendation, the Marquis of Cadereita felt reassurance, but still he hesitated. At last, the decision had to be made; he determined that the fleet had to sail. Too much was at stake, at home and abroad, to do otherwise. At seven in the morning, the Marquis had given the order to weigh anchor.

"It took more than an hour for all the ships in the unwieldy convoy to clear the port and form into sailing order. Then the Guard Fleet capitana led off on a north-north-west course. As almiranta of the Tierra Firme ships, the Atocha brought up the rear of its fleet. Having gotten safely offshore by midafternoon, the fleet then tacked to the eastward of Havana to enable the ships to sail easily northward with the wind to the lower Florida Keys. There, where the current was strongest, the fleet would enter the Gulf Stream, which would boost them strongly homeward.

"At sunset, Lorenzo Vernal estimated that the fleet had reached a point thirty miles to the northeast of Havana. Accordingly, he ordered a turn to the northward. Although the wind had changed little in strength or direction since morning, Vernal knew the weather had altered. The strikingly lovely deep-red sunset was disquieting in itself; its vivid colors were reflected in a thin veil of cirrus clouds that had overspread the sky. And Vernal saw how the sunset tint lit a towering bank of cumulus piled high in the southeast. At dusk a stronger breeze began to blow.

"Through a night of steadily rising wind, the fleet held its course. Toward dawn on Monday the ships entered the center of the Gulf Stream current. The tossing motion of the vessels brought discomfort, then uneasiness, then wholesale seasickness to many passengers and crewmen of the fleets. Early morning disclosed that a strong northeast wind was raking the opposite-flowing current of the Gulf Stream, raising vicious cross-seas.

"The ships reduced sail to weather the storm. Seamen went aloft to bring down the topmasts and reduce the windage there. All objects on deck were strongly secured and hatch covers firmly lashed down. As the morning passed, the day darkened and the weather worsened. The wind rose to a whole gale. The height of seas around the convoy mounted to more than ten feet, and flying spray torn from wavetops by the shrieking wind obscured the horizon. Visibility fell until pilots and lookouts on the ships could scarcely make out the vessels on the convoy's edge.

"Now the ATOCHA'S waist was almost continuously awash, as great seas swept around the overloaded ship. The pilot ordered the mainsail lowered so that the ship could go forward more easily under foresail alone. The sailors who struggled to comply with the order clung to the mainyard, battling lashing canvas, as the extreme ends of the yard dipped regularly into the boiling sea. What most disturbed the men at work, however, was what they had seen near the ship's stern: the fins and the upper bodies of two great gray sharks, following the ATOCHA through the storm.

"Even with reduced sail area, the ship plunged wildly and became increasingly difficult to control. The helmsman could no longer steer properly, so the whipstaff was disconnected and the tiller lashed in place. At each heavy blow of the sea the ATOCHA'S hull shuddered and her masts creaked in their steps. Crashes below told of shifting cargoes and broken wine and olive jars.

"By the end of the long afternoon, many of the ships in the convoy had lost their mainmasts. Some had no steerage-way whatsoever, for their rudders had been shattered by huge following seas. One small ship, the BUEN JEUSE, had lost both masts and rudder; she fell farther and farther behind the other vessels and was finally lost to sight. Watchers aboard the ATOCHA saw the little NUESTRA SENORA DE LA CONSOLACION struggling along under a close-reefed foresail. To their horror, they saw the small craft suddenly capsize and vanish into the angry ocean. The could launch no boat in the wild seas, nor could they turn their own ship to go to the aid of those on the stricken vessel. The gnawing feeling grew among those on the ATOCHA that the same fate might well await them all.

"Long before sundown the world grew dark, and the chief pilot Vernal lit the Guard Fleet capitana's stern lantern. He could not tell at that point if any other ships survived to follow the lantern's gleam; as far as he could see, the capitana now sailed alone. Any protective sense of being in convoy had now gone, and each ship stall afloat struggled in its own lonely battle against the hurricane.

"Aboard the SANTA MARGARITA, silvermaster Gutierre de Espinosa called his aide, Aguirre, to his cabin. Bracing against the plunging motion of the ship, Espinosa opened his official trunk and asked Aguirre to help him take out some treasure. The two men removed eight gold disks and six gold bars, three small gold pieces, a silver bar, and some silverware; they placed it in Espinosa's personal sea chest. The silvermaster then locked the chest and bound it with rope. He had made his own private preparations for disaster.

"Meanwhile, below decks in the SANTA MARGARITA, Captain Bernardino de Lugo shouted for silence; frightened cries and groans of dispair faded, then died. Holding for support to a ringbolt, the captain motioned to the pale cleric beside him, and told his men that Chaplain Ortiz was ready to begin confessing them. He added that the two Jesuit priests aboard were in the cabins above, taking the confessions of the officers and passengers; they would also come to the gun deck to help there when they were through. Even greater than his dread of drowning at sea was a Spaniard's fear of dying in a state of sin. That could mean the loss of his soul for all eternity. The men crowded forward.

* * *

"By the time the wind shifted to the south, both capitanas and nineteen other vessels of the combined fleets had passed to the west of the Tortugas and thus out of danger of grounding. Five unlucky ships — Vargas' ship the ROSARIO, the fleet patache (tender), the Portuguese slaver, the SANTA MARGARITA, and the ATOCHA, playthings of the wind — were swept irresistibly toward the Keys. A small Cuban coast-guard vessel was also caught up in the ill-fated group.

"To Spanish mariners, Florida was an evil name. Scores of shipwrecks dotted the esa bottom along its costs and in the Keys. In the isolated area that lay ahead of the six ships, Spain's writ scarcely ran. For more than fifty years, expeditions sent there from the Spanish capital at Saint Augustine had never succeeded in making lasting settlement. Sailors lost in the Keys had to run a double gauntlet: if they survived the ruin of their ship, they still had to face the untamed ferocity of the Keys Indians, who often killed shipwrecked men.

"The first light of dawn on Tuesday, September 6, revealed an awesome sight. As the Spanish ships came into more shallow waters, the seas became even steeper. The few men left on deck beheld a sea covered with huge rollers, their fifteen-foot crests whitened by the gusting wind. Lookouts on the three westernmost of the ships saw vaguely ahead the outline of low islands — the Tortugas. The sailors heaved over their anchors to halt the ship's onward course to disaster. One by one their anchor lines broke, and the ROSARIO, the slave ship, and the fleet patache were grounded, wrecked in the shallows, battered by incoming storm waves.

"Meanwhile, forty miles to the east, the SANTA MARGARITA and the ATOCA approached a place where the trough of each passing wave bared the reef in a welter of foam.

"Only the stump of the MARGARITA'S mainmast remained; her rudder was gone and her foresail had blown away. When soundings showed rapidly shoaling water, three seamen crept forward to set a scrap of canvas on the foremast and attempted to claw back away from...