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Sometimes you just have to take a break from personal injury law and talk about treasure hunting. In this episode, we interview Lieutenant Commander and Navy JAG, Jordan Foley about maritime treasure law. Why? Because I didn’t know anything about it and wanted to hit “record” while I learned.
During this conversation, we take a “deep dive” into some of the misconceptions surrounding treasure law and some of the challenging legal arguments that come up during international treasure disputes.
Visit Jordan online here: https://www.usni.org/people/jordan-foley.
See all episodes or subscribe to the Personal Injury Marketing Minute here: https://optimizemyfirm.com/podcasts/.
Transcript:
Lindsey:
Welcome to the Personal Injury Marketing Minute, where we quickly cover the hot topics in the legal marketing world. I’m your host, Lindsey Busfield.
Well, I should amend my opening spiel. We usually cover the hot topics in the legal marketing world, but sometimes we’re just going to talk about whatever I want to.
I recently taught a CLE at the Maryland State Bar Association, and while I was there, I met Lieutenant Commander in Navy JAG, Jordan Foley.
While he currently serves as the Department of Defense Fellow to Senator Mazie K. Hirono in Hawaii, he has a special background in naval warfare and a deep understanding of maritime treasure law.
Knowing absolutely nothing about this myself, I wanted to take the opportunity to learn more about treasure law and invite you listeners to join me on this educational journey.
Thank you so much for joining us today, Jordan.
JJ Foley:
Absolutely. Thanks, Lindsey, for having me, and it was great meeting you in Ocean City, and I was glad we could talk a little
A little bit.
Lindsey:
And as I like to say, nerd out about treasure law. So that was fun. I mean, who doesn’t love treasure law as kids?
You know, we are taught to play pirates and you steal the treasure. My kids do this on their play set.
You know, it’s just kind of built into your childhood and development as a natural curiosity. So tell us a bit about your background and how you got involved in treasure law.
JJ Foley:
Absolutely. I’ll actually start with saying knowing more about treasure law takes some of the romance out of it, which we’ll get into later.
But it is a fun topic. But so, you know, as you stated, I’m an active duty Navy judge advocate.
I started off my naval career as a submarine officer. So I got ship driving experience and deployment experience there.
And they got selected for a Navy program where they sent me to law school and I became a Navy JAG through that.
So I have a bit of a mix. I’m about 15 years into my career and half of it was spent on submarines and now about half of it as a judge advocate.
And a lot of what I’ve focused on over the years has been. Naval warfare and legal analysis. So whether that is applying law to sea to board deploy missions, or sometimes weapons reviews, as I was doing at the Pentagon most recently before I joined Senator Verona’s office as a defense fellow, a lot of it’s been bridging the gap between my naval warfare experience and the legal and policy world.
Lindsey:
And a lot of this comes with your understanding of international law, treaties, and working with our partners and allies, and sometimes even teaching and providing legal support for our partners and allies.
So I’ve had this broad experience, and as one does in the beautiful profession of naval law and such, you find your interest areas, and mine became very quickly, for a lot of reasons you mentioned, treasure law, because it’s cool and it’s fun, and it’s almost a bit of a hobby for me, too.
But in the industry, in the private sector, it is an area that you have some specialized attorneys. He’s in maritime and admiralty, and I like to see myself as maybe extra specialized with admiralty and maritime law, as focused in the Navy, but it doesn’t stop me from nerding out, as we said, about things like treasure law.
So let’s start with kind of a broad focus here. What exactly is maritime treasure law, and how does it differ from other types of maritime or property law?
JJ Foley:
So interestingly enough, it specifically deals with ownership, salvage rights, protection of valuables covered from shipwrecks, and submerged cultural heritage.
So it’s unlike broader maritime law. That’s going to cover your shipping, your navigation, commerce. Treasure law focuses on the intersection of property rights, historic preservation, and salvage operations.
So you actually find an interesting niche here, and it’s very complex in a lot of ways. So for international lawyers out there, it’s great.
For a hypothetical question on… Law school exam, I’d absolutely throw one on there if I was teaching international law.
But with treasurer laws, involves just complex international treaties and competing claims from governments, private salvers, and descendants of original owners.
Lindsey:
You know, it’s making it tightly and highly specialized, nuanced area with just storylines galore. So that’s really how it differentiates itself.
And anyone who dives into it, pun intended, too, can really see where the romance we spoke of comes from with treasurer law.
And you have so many different parties that are involved in this, as you mentioned, you know, you have historic preservation, you have people who are going after and finding the treasure and having that excitement and kind of that, and an investment in going down and finding this as well as the country of origin.
And there, I mean, it just, as you said, makes it so incredibly complex. And since it is complex, clearly, there are probably some big misconceptions out
out there that have to do with this when somebody is kind of taking a top-level glance at this case.
So what are some of the biggest misconceptions that people have about treasure hunting and maybe the legality surrounding it?
JJ Foley:
I do love, Todd, because this is where my wife doesn’t let me tell my daughters about the nuances here because she doesn’t want me to take away the whimsy.
But a big one is there’s not really finders keepers. I think that’s a big one. So one major misconception is that anyone who finds a shipwreck or treasure automatically owns it.
But in reality, the ownership and salvage rights are subject to these treaties, national laws, historic claims that we talked about.
So it can get kind of messy. So I would say that’s definitely one of them that we look at as saying, hey, you found it, it’s yours.
No, actually, it’s contrary to what you believe in a lot of ways. Another one is that, you know, sunken warships are still sovereign territory.
Warships can be centuries old and remain the property of that. But thanks to sovereign immunity, which is a concept that I work with pretty extensively.
So that means if you find a Spanish galleon or something from the 1700s, it may still legally belong to Spain.
So Duncan worships are still sovereign territory, which is a foundation that we practice as a Navy and beyond. But there’s also a treaty for all this stuff, I guess.
UNESCO, a convention on the protection of underwater cultural heritage, talks a lot about this. I think I mentioned earlier, you know, there’s some protectionism in it.
And there is a treaty. We think about this stuff. People think about this stuff. The UN thinks about it.
And then I would say the other one where people think like after a long period of time, like how long do you got to wait for this to just expire, right?
It’s time doesn’t always expire on your ship. So you think that after like 200 years, all bets are off.
But we still have heirs to shipping companies that have successfully claimed cargo centuries later after. It was lost. So I think those are a lot of the ones.
Lindsey:
And then, you know, one movie I tend to sometimes, you know, ruin for people is The Goonies. I know my child would.
JJ Foley:
So, you know, the kids find the one-eyed Willie’s treasure and, you know, it’s going to, you know, they found the loot, right?
But in reality, it would raise serious questions. So it’s like, you know, was the treasure bandit? Who owns the ship?
Was it a protected heritage zone? But, you know, it’s these movies and I think the whimsy around finding treasure that make it in so many popular films.
But I tend to enjoy picking apart some of the ones. And people always say, like, you know, as a jag, what do you think about A Few Good Men?
And it’s like, well, yeah, I mean, think it’s a great movie. was a great recruiting tool for us. And then anybody who practices in a courtroom will tell you what was on and off.
But I think, you know, the reason why there’s so many shows, Jag being one of them, one of the most popular ones, I would say, you know, for a stretch there in the 90s, is.
That the courtroom provides drama. And then this treasure law, a component of it too, treasure, you know, provides the whimsy and the interest.
So I think, you know, marrying the two together, it’s interesting.
Lindsey:
I don’t know if we’ll ever, Lindsey, don’t know if we’ll ever see a treasure law sitcom movie or anything that’s really deep into the practice.
But if Hollywood comes knocking, I’d be happy to help them write that script. And I think it would be a great script because it is, it is complicated.
And if you have somebody who is an heir to a treasure that was lost, let’s say 200 years ago, they might not even know it exists.
If they know it exists, they don’t have the resources to go get it. And then you have somebody else who has invested in the resources, had a hunch that something might be down there and has gone and recovered this.
So you would think that part of that claim would go to the person who recovered it, but because without their effort, that recovery never would have happened.
And clearly there are, there’s a lot of interest in this and government. And some private companies and individuals have to interact when it comes to finding a fair result.
So can you walk us through how all of these different entities interact or compete when it comes to salvaging treasures at sea?
JJ Foley:
Yeah, absolutely. And I think what we find is, you know, it all depends on a lot of different factors.
You know, it’s proximity to a coast, you know, essentially what the nature of the shipwreck or the abandonment was.
And a lot of those things I mentioned and, you know, into the Goonies script are things that are considered.
So one awesome part about treasure law and also why I think this podcast will be useful for just about anyone, especially law school teachers, is it makes you draw the facts a lot, which any good law school hypo will make you do.
But as lawyers, I mean, I’ve found that, you know, coming from submarines in a different profession, you know, being older and a law student, law school, especially 1L.
at klapper. if of Changed the way I approached problems. So I thought critically differently. I’ve spotted facts differently. And I think with treasure a lot makes you do that too.
So you’re looking at all these fact based things. So does the treaty, does a treaty apply? Is it a sovereign nation?
Is it a worship? You know, what was the nature of the treasure found, potentially valuation, things like that. So I would say you’re looking at a mix of national, international claims and laws, as well as stakeholders.
And you’re asking all of these questions to get to the bottom of, all right, which rabbit hole do I go down here?
What laws are going to apply and what claims could be made on what I found? So I would say, you know, rather than one formula for it, which, you know, is there is some overarching international law for this, but I would say one formula for it is, you know, getting the facts.
Lindsey:
And there’s a couple of cases that really tell us about just the nuances and intricacies of , , ,
You know, what looks like a clear case of somebody finding some treasure and getting really lucky. It ends up being where there was a claim, you know, from sovereign nation from hundreds of years ago.
So, you know, that’s another misconception talking about that is, you know, it’s not a lucrative business to be a treasure hunter.
Sometimes, sometimes you gotta, you gotta have a lawyer in the room, too. So, you know, you gotta, gotta have that, you know, there, because there are a lot of facts that are dependent upon if you can lay claim.
And I think that’s the cool part about it is just asking those questions and going on a bit of a hunt, like a little bit of an adventure.
Absolutely. And one notable case where this became highly contentious was the Black Swan case.
JJ Foley:
And so can you walk us through a bit about the origins of that case? Oh, yeah, that’s a good one.
Black Swan case, I think is, you know, for people in certain fields, you know, they always have their big one.
And I would say this is one of my favorites generally, but of course, in this area, I would say this is the one you mentioned.
Teach to and talk to a lot. But the Black Swan case, so it originated when a private salvage company had discovered the wreck of a Spanish naval vessel sunk in 1804 off the coast of Portugal.
The treasure was your primary silver coins and currencies and things like that of the day that was recovered and brought back to the United States.
It sparked a legal battle between the Salvers and the Spanish government. Spanish government claimed sovereign immunity. kind of led into that earlier on, and that’s a big part of Black Swan and cultural heritage rights over the ship and its contents.
So in 2007, this Florida-based company that I mentioned here, their Odyssey Marine Exploration, they made headlines on this around the world just because they announced the discovery.
They found a massive long-lost treasure, and it’s a haul of like over 500,000 silver and gold coins and recovered from a shipwreck super deep in the Atlantic Ocean.
And the exact identity of the wreck was a niche. So I put all the facts and did a spoiler alert kind of up front, but it really wasn’t clear what this wreck was from.
So Odyssey just referred to it only as Black Swan. So it was kind of one of those things where that was where the name came from and it stuck.
But it started to permeate and people started to talk and it became clear that the wreck was almost certainly the Nuestra Señora de la Mercedes.
I don’t speak Spanish, so I did the best I could, but it’s a Spanish frigate, the naval vessel that was sunk in 1804 that we spoiler alerted early on.
And that became clear, but it wasn’t just any ship, right? This is where the facts stuff, just the facts, right?
It wasn’t just any ship. It was a state vessel. It was part of Spain’s official naval fleet carrying precious cargo from Peru back to the Spanish crown when it sucked.
So that’s a huge fact to have to say, oh, this is an official Navy vessel. And it’s really –
Culturally, too, it like a time capsule of colonial wealth and naval warfare and European imperial ambition. This is a historically awesome find for anybody who’s interested in this era and just the evolution of at-sea expeditions.
But Spain, upon learning of the recovery, they did file suit in U.S. court claiming the treasure. And the ship, you know, were Spanish state property immune from salvage under international law, right?
So that’s what we’re trying to prove. You know, you can’t salvage it if it’s state property. So that’s what they filed.
And Odyssey argued back that they just evoked traditional salvage rights under admiralty law. So they just claimed like, hey, we’d taken the risk.
We invested heavily, right? And that’s what we get. Like we put the money in. We did the work. We got it.
We’re not handing it over, you know, to say it super colloquially. But what followed was a high-stakes courtroom drama.
Like, you know, we talked, we joked about the sitcom or the movie or the show. But like, it’s like.
A lot of money at stake, emotions, right, too? This is cultural heritage, too. It pitted a modern treasure hunting company against a sovereign nation.
So it’s a pretty cool battle there that you get to see on each side of the V. But the legal battle lasted years like these tend to do, and Spain argued that the ship was sovereign immune and off limits, and Odyssey still contended.
But in the end, the U.S. court sided with Spain. The treasure was 17 tons of silver and gold, was ordered to be returned to Madrid, and in 2012, two military cargo planes flew it back across the Atlantic, and Odyssey didn’t receive anything for it because of this.
And because the U.S. court upheld that sovereign immune official state vessel ruling, and the Black Swan case honestly sent shockwaves around the world for underwater exploration.
It affirmed the power of sovereign immunity, and it changed how… Treasure hunters approach historic shipwrecks. It also sparked debates about how ownership, heritage, and ethics even of turning cultural things into monetary gain.
Like really, is this what we’re gunning for here? Is this why we’re investing heavily just for monetary gain? Maybe there’s an ethics discussion here too.
But anyway, well, Black Swan just wasn’t just about coins, right? It was about how we respect history, who gets to own it, and the tensions between profit and preservation.
So I would say as a final frontier of discovery, the deep sea, I think Black Swan weighs really heavily and importantly on a lot of these treasure hunting expeditions and why we do it, right?
So that’s kind of why I like Black Swan a lot. I think it’s actually a broader lesson generally, but it’s still cool.
It’s a Spanish ship and it’s hundreds of feet below and it’s tons of silver.
Lindsey:
So hard not to be cool there, but I also think like the historic… Ruling here is very important to teach to generally about a lot of those themes that I mentioned.
Well, I guess the big thing that comes up for me is fairness, where you have the Spanish property. Clearly, it’s Spanish property.
Their heritage is tied into it. It’s a lot of value that’s tied into it. And it was clearly something unfortunate happened to them in order for this ship to be sunk and then the treasure to go down with it.
Clearly, something bad happened there. And they have been kind of the victim in all of this. But then you have Odyssey that finds this and invests all of their money and resources and go to excavate this out.
You would think that there would be some share that Odyssey would get out of this. Just make it fair for putting their resources into this to retrieve this gem for Spain.
And it sounds like that. Absolutely didn’t happen. And Spain very much was the winner in this. And so you’re right, it brings into questions the motives when it comes to treasure hunting.
And I wonder what your thoughts are on the impact of the future of treasure hunting, when it can be shown that you can put in a whole lot of investment and get absolutely nothing out of it.
Will treasures that are sunk just continue to be down there because there’s no monetary motivation to go get them?
JJ Foley:
Yeah, I think all great points, Lindsey. And, you know, it’s this preservation aspect too. And it’s, you know, we mentioned this is a 1804 frigate sunk to the bottom of the ocean, obviously not their sailor’s best day, probably loss of life, right?
We don’t know. The historic records go into a little more detail, but it’s sad and it’s, you know, it’s a challenging topic when it comes to any mariner, you know, myself being in a boat that was designed to sink and surface, like, you know,
I get the perils, right? It’s important to understand that and understand the souls on board. But you’re right. You reach another really interesting point too where I would say I lean heavily with the state sovereignty side just by profession and personal beliefs.
But you’re right though. It’s like, well, what if these things just go uncovered forever and the ocean erases them?
We’re losing a mass part of history. Maybe these private companies are the only ones to go down and do it.
And at some point you’re not going to know, just like Odyssey didn’t know this was a frigate. They just happened to go down, find it, and then figure out all of a sudden, boom, this is an official naval vessel of the Spanish fleet from the 1800s.
There’s got to be a middle ground, right? I always say too, I kind of make the joke sometimes, going off topic here, but about the NCAA.
You know, I always say like, right now there’s got to be a middle ground between Reggie Bush’s Heisman getting taken away and some quarterback going to Tulane to play, you know.
For $8 million, like there has to be a middle ground here, everyone. So I make that joke quite frequently, because I’m a huge football fan, too.
And I love college football. But, but yeah, you’re right. Like, where’s the middle ground? Where’s fairness? Because the private sector is going to be incentivized.
You know, and we see all the time, believe me, we see it all the time, maritime law, the way these rulings go, they incentivize and disincentivize private sector.
But yeah, we want to see these things preserved. And we want to make sure that countries’ integrity and their sovereign property is still held intact, too.
So where do you find it? And it kind of goes back to that quip of like, here’s the spectrum.
Where can we find it in the middle? And I think, you know, we do have, whether it’s the UN or national bodies, a lot of ways of making sure that these private companies are still operating in the same way that they do and uncovering awesome parts of history that have been lost to the ocean.
But at the same time, Black Swan is interesting because of the level. of drama and the extremeness maybe that some see of the rulings.
That’s why it has maybe as a storied now history as that frigate sinking really.
Lindsey:
It’s just all part of the human experience on earth here in over hundreds and hundreds of years. So I think that’s something.
But I do like that you touched on that and asked that because to me, there’s got to be a middle ground.
Even if I’m leaning on one way, you got to figure out how that we let these private companies still uncover these treasures.
And that’s the challenge. Right. Because the worst thing that could happen is to have everybody lose and have all these treasures sunk to, you know, for the rest of history and just completely be destroyed by the ocean.
And so finding fairness, whether it’s in treasure law or in personal injury law or in any type of law that we’re practicing, making sure that, you know, if everybody can walk away with some sort of win in this, then we’re truly moving the profession forward.
And so to close this up. In your opinion, is there any other lesson or major takeaway that governments and treasure hunters and even our personal injury audience here can take away from the Black Swan case or other treasure hunting cases that are out there?
JJ Foley:
I think it’s exactly what we just talked about here. The key lesson has got to be preservation and profit are not mutually exclusive, and they require careful legal frameworks and respect for sovereignty, really.
The best way I could frame that conversation we just had, and I think the biggest takeaway, governments need to establish clear policies and partnerships to protect underwater heritage, but you’ve got to also allow responsible salvage.
Lindsey:
Treasure hunters also have to conduct thorough legal due diligence and collaborate with governments to avoid these cost disputes, but ultimately, think balancing these interests, it fosters that sustainable stewardship of our shared maritime history that you and I were trying to get at here.
And obviously, the problem is bigger than us being able to hash it out on this. On this right now, but it’s good.
It’s good to think about. That’s a good starting point.
JJ Foley:
Yeah, yeah. We can figure out from here, maybe over a couple more beers or something. But overall, I think that’s my major takeaway, which is why I think, although this is a niche topic, I think it applies more to other practice areas and things just even take away just as a person of humankind and a lover of history.
Lindsey:
If you’re one of those or both of those, of course, this should interest you and it should also get you thinking a little bit.
So I hope that’s the takeaway. And to me, that’s what Black Swan really stands for. I love it. I think that is a great takeaway and will give everybody listening something to chew on.
Well, thank you so much for joining us today and sharing your thoughts on this and your expertise when it comes to this.
JJ Foley:
Absolutely. This was awesome. And again, I had a lot of fun here just nerding out about treasure loss. So happy I could do it and happy we met.
Lindsey:
It was great to meet you in Ocean City and it was nice to… I just discussed some of this, and I’m glad you invited me on, so thank you.
You have a great day.
JJ Foley:
You too. Thanks, Lindsey.
Lindsey:
Perfect. That went great.
JJ Foley:
Awesome. Yeah.
Lindsey:
Yeah.
JJ Foley:
Yeah. No, I drafted up some notes to stay on task there, but sometimes I’ll get going. But overall, I think it was, you know, kept it lively enough.
Lindsey:
Because it gets all of, I mean, you’re the one who has something interesting to say here. I just try to keep questions to keep you going.
Yeah.
JJ Foley:
Yeah. No, I know. I’m an adjunct professor this fall at Hood College in Frederick for criminal law. So I just got to remember to not, like, dive into it because I love talking about cases.
So, like, I’ll just, like, go into depth there. But I need to definitely, you know, get more student engagement here coming up whenever I’m starting that.
But that’s, like, my big weakness. You get me going on a case, and I know the facts. Like, I’ll just tell you.
It’s, like, my people joke, it’s, like, your Roman Empire is kind of, like, the obsession thing, you know? So that’s, like…
Any case that I know the facts of is my Roman Empire. So I just go at it. But, but cool.
No, thanks for your time. I appreciate it. This was awesome. And yeah, it was a good, good way to break up.
Otherwise, like pretty nasty day here.
Lindsey:
So it’s been, it’s been nice to talk a little bit. Yeah. So it’ll probably take maybe a month or so for this to get up and live.
But once it is, I’ll send you the link to it. You can share it wherever you want. Feel free to share it with your university if you want to have this be something there.
Like that would be, that’d be great too.
JJ Foley:
Definitely. I’ll definitely promote it on my socials and pass it along. I think between like Holland and Knight and the Navy, they might want to pick it up too.
So I’ll, I’ll see what they, what they say. And then I think it’s just a good opportunity. And, and, you know, it’s a, I guess, you know, it’s an interesting topic enough.
Maybe you get some clicker clicks on it that you wouldn’t typically get, you know, just some people from outside the space.
Lindsey:
that’s good. So. Yeah, no, that’d be fabulous. Cool. Well, I’ll be in touch once it’s up and running.
JJ Foley:
Absolutely. Thanks, Lindsey. Well, have a great day and appreciate all the, and I apologize for some of the extraneous noise here.
I got as quiet as I could, but I apologize for that.
Lindsey:
There’s no noise on my end, so we’re all good.
JJ Foley:
Good, good, good. Okay. Awesome. That’s good. I thought I picked a quiet enough room, but I heard some shouting out in the hallway, so I’m glad you didn’t hear it.
Lindsey:
Cool. The microphones these days can pretty much cancel anything out. Awesome. All right. Well, have a good rest of your day, and thanks again.
