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JNAPC: HMS Victory Briefing May 2012

JNAPC: HMS Victory Briefing May 2012

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Published by: Rescue - The British Archaeological Trust on Jun 10, 2012
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Briefing on the Gifting of the Wreck of HMS Victory sunk in 1744May 2012
This paper poses some important questions to the Ministry of Defence, the Department for Culture, Media and Sport, and the charitable trust, the Maritime Heritage Foundation, to whichthe wreck of HMS Victory 1744 was gifted by MOD in January 2012. These questions, tabledat the end of the paper, need to be answered urgently so that everyone has the opportunity tounderstand how and why Government has made its decisions. It is most important that thefuture of this iconic example of the UK’s underwater cultural heritage is managed in aresponsible and transparent manner which gives confidence to the world that the UK Government is following best archaeological practice and complying with UK heritage policy.In the light of the questions identified in this paper no further work should be allowed at thewreck site by the Maritime Heritage Foundation until the questions have been satisfactorilyresolved. In the meantime, the wreck should be monitored in situ by an independentarchaeological contractor.HMS Victory, a 100 gun first rate warship, was the flagship of the British Navy commanded byAdmiral Sir John Balchin and the predecessor to Nelson’s Victory (1765) now in Portsmouth.For reasons unknown it sank with the loss of over 1,000 lives in a violent storm in the EnglishChannel in October 1744.Odyssey Marine Exploration Inc., a firm of commercial salvors from the USA, located thewreck in 2008 while searching for high value historic wreck sites in international waters on theUK’s Continental Shelf. They reported the find to the MOD because HMS Victory was, whileit remained in Crown ownership, a sovereign immune warship and therefore immune fromsalvage. Thus Odyssey had no salvage rights and their subsequent claim to be salvors-in- possession is almost certainly unfounded. MOD, without taking any archaeological advice,consented to two cannons being lifted for identification purposes, although such identificationwas not in doubt and consequently there appears to have been no archaeological justificationfor disturbing the site. Odyssey announced the find in February 2009 and made an offer toMOD to excavate the wreck. However to help decide the future management of the wreck MOD and DCMS launched a public consultation which closed in June 2010.The results of the consultation were not announced until July 2011 and MOD reported that theoffer by Odyssey would not be accepted. We know that Odyssey’s offer was based onfinancing the work by de-accessioning and selling artefacts which is against normalarchaeological practice and also inconsistent with the UNESCO Convention on the Protectionof the Underwater Cultural Heritage 2001 and its Annex. The UK has adopted the Annex as itsstated heritage policy for Underwater Cultural Heritage (UCH). MOD however announced thatthey would undertake a phased approach and that they were considering following up an offer  by an undisclosed charitable trust to manage the wreck. We now know that this was theMaritime Heritage Foundation chaired by Lord Lingfield (Sir Robert Balchin) a distant relationto Sir John Balchin who died in the sinking. Lord Lingfield is closely associated with Odysseyand was quoted in Odyssey’s press release at the time of the find in February 2009 as saying:
“I and my family hope that as many of the artifacts on it as possible will be raised to the surface; our fear is that erosion, or trawler fishing will destroy what is there within a very few years”.
Odyssey is a quoted company on the US NASDAQ stock exchange whose purpose is to makemoney for shareholders by finding, salvaging and selling off artefacts from high value historicwrecks. However this business plan has not been entirely successful and the company’saccounts show that it has lost $147 million over recent years. These losses have been fundedover the years by regularly raising new equity in the stock market. In 2007 they illegallysalvaged 17 tonnes of silver and gold coins from the Spanish sovereign immune frigate NuestraSenora de las Mercedes, sunk by the British in 1804 off Portugal, and flew the cargo throughGibraltar back to Florida. Spain has however pursued Odyssey through the courts in the USAfor 5 years in order to retrieve its possessions and won. The US courts ordered Odyssey torelease the coins and in February 2012 they were flown back to Spain.MOD now maintains that the MHF was the only charity that offered assistance and that is whythey were chosen. Unfortunately this is not correct. In June 2010 ProMare, a well-resourced USmaritime archaeological charity operating out of Plymouth, offered to make quarterly surveysof the wreck at no cost to MOD thus allowing the wreck to be safely monitored in situ until a proper course of action could be decided. Navy Command in Portsmouth, which hasresponsibility within MOD for managing Royal Navy historic wrecks, never acknowledged thisoffer or even contacted ProMare for a further 13 months. We do not know why this was thecase.In late January 2012 MOD announced that the wreck of the Victory had been gifted to theMaritime Heritage Foundation but that all work would have to be carried out in accordancewith the Annex to the 2001 UNESCO Convention. A major component of the Annex is thatunderwater cultural heritage may not be sold off or exploited for commercial gain. At the sametime an Advisory Group was set up within Navy Command, with members from the NationalMuseum of the Royal Navy, English Heritage and an observer from DCMS, to advise theSecretary of State for Defence and the MHF whether its proposals are in accordance with theAnnex. An Expert Panel, consisting of acknowledged archaeological and legal experts, wasalso set up in April 2012 to provide additional advice to MOD and the Advisory Group.One week after MOD’s announcement of the transfer Odyssey put out a press release sayingthat it had entered into what amounts effectively to a commercial salvage contract with theMHF (See Appendix 1) whereby not only will Odyssey be paid for any actual archaeologicalwork carried out but that the MHF will also have to pay additional amounts varying between50%-80% of the monetary value of items recovered. Since there are likely to be up to 100 bronze guns on board, and the two that have already been recovered were sold to the NationalMuseum of the Royal Navy for £50,000, this could be a very substantial sum of money.Odyssey is also claiming that Victory was carrying a considerable amount of gold and silver  bullion worth many millions of pounds at today’s values. However, a report by WessexArchaeology, a respected archaeological charity that advises English Heritage, in a report prepared for MOD and DCMS for the Consultation doubts whether any coin or bullion was present on the vessel (See Appendix 2).Odyssey maintains that it would prefer to be compensated in cash, assuming MHF hassufficient funds to do so. However, if the MHF determines, based on the principles adopted for its own collections management and curation policy, that it is in the MHF’s best interest to de-accession certain artefacts, MHF may choose to compensate Odyssey with artefacts in lieu of cash, which Odyssey may then sell into the antiquities market. De-accessioning is a formal process whereby museums (which MHF is not) may dispose of archaeological material whichis of little or no archaeological significance. Typically the process requires analysis of thematerial, assessment of its archaeological (not commercial) value and consultation. Odysseymaintains that its agreement with MHF is compatible with the British Museum’s de-accessioning policy. It is not. The British Museum’s policy prohibits de-accessioning for the
 purpose of raising funds (See Appendix 3). Furthermore under this agreement MHF’s de-accessioning must inevitably be based upon the monetary value of the material, not its lack of archaeological significance.JNAPC is advised by international maritime lawyers that such an agreement is contrary to theUNESCO Convention. The guidelines to the Annex(http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/unesco-manual-for-activities-directed-at-underwater-cultural-heritage/unesco-manual/general- principles/commercial-exploitation) (
 see Professional services and authorised deposition,Curation and the issue of dispersal, paragraph 2
) specifically state that de-accessioning for the purpose of feeding the antiquities market is not consistent with the Annex. For full text of Convention and Annex see (http://www.unesco.org/new/en/culture/themes/underwater-cultural-heritage/2001-convention/official-text/)Furthermore in April 2012 the Scientific and Technical Advisory Body to the UNESCOConvention minuted a recommendation to States Parties saying that it:
 Identifies as one of the emerging issues concerning the protection of underwater cultural heritage the current discussion on a possible financing of archaeological services bymeans of de-accessioning of artefacts; and 
 Recommends to the Meeting of States Parties to consider that the financing of archaeological excavations by the process of the de-accessioning of the artefacts from theconcerned site is not consistent with the Rules annexed to the 2001 Convention.
Whilst we are not in principle against the management of historic vessels by properly resourcedand managed charitable trusts (e.g. the Mary Rose Trust and the proposed transfer of HMSVictory 1765 to the National Museum of the Royal Navy with a £50 million dowry) it is notapparent that the MHF has any financial, archaeological or management resources of its own. Itis unable to respond to letters and appears to rely wholly on the archaeological advice andfinancial resources of Odyssey who have a clear conflict of archaeological and financialinterest.If the MHF has no discernible financial resources, and there is currently no evidence of theFoundation seeking such resources, the only apparent way that it can finance work by Odysseyon Victory is by the anticipated de-accessioning of artefacts before any work has even begun.Odyssey is a listed US company which is in business to make a financial return for itsshareholders and the MHF will therefore have to find money from somewhere.Odyssey has already undertaken new survey work on behalf of the MHF in March 2012,confirming in their press release the existence of at least 75 bronze cannons. Excavation of thesite is only normally justified under the Annex of the UNESCO Convention if the site isseriously threatened by disturbance, whether caused by natural or human forces, or if there is aserious and fully financed research agenda. By engaging Odyssey to conduct a survey toestablish whether there is any site disturbance justifying excavation, having at the same timeentered into a contract whereby Odyssey is remunerated for any excavation subsequentlycarried out, MHF has created a most unfortunate conflict of financial interest for itsarchaeological sub-contractor. It is now in Odyssey’s financial interest to establish sitedisturbance and therefore the objectivity of its archaeological advice could be questioned. Thisraises questions as to prudent governance by a heritage charity and the initial surveys shouldhave been carried out by an independent archaeological contractor with no vested financialinterest in the outcome.

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