Briefing on the Gifting of the Wreck of HMS Victory sunk in 1744 May 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 which the wreck of HMS Victory 1744 was gifted by MOD in January 2012. These questions, tabled at the end of the paper, need to be answered urgently so that everyone has the opportunity to understand how and why Government has made its decisions. It is most important that the future of this iconic example of the UK’s underwater cultural heritage is managed in a responsible 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 the wreck site by the Maritime Heritage Foundation until the questions have been satisfactorily resolved. In the meantime, the wreck should be monitored in situ by an independent archaeological contractor.
HMS Victory, a 100 gun first rate warship, was the flagship of the British Navy commanded by Admiral 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 English Channel in October 1744.
Odyssey Marine Exploration Inc., a firm of commercial salvors from the USA, located the wreck in 2008 while searching for high value historic wreck sites in international waters on the UK’s Continental Shelf. They reported the find to the MOD because HMS Victory was, while it remained in Crown ownership, a sovereign immune warship and therefore immune from salvage. 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 identification was not in doubt and consequently there appears to have been no archaeological justification for disturbing the site. Odyssey announced the find in February 2009 and made an offer to MOD 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 the offer by Odyssey would not be accepted. We know that Odyssey’s offer was based on financing the work by de-accessioning and selling artefacts which is against normal archaeological practice and also inconsistent with the UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 and its Annex. The UK has adopted the Annex as its stated heritage policy for Underwater Cultural Heritage (UCH). MOD however announced that they 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 the Maritime Heritage Foundation chaired by Lord Lingfield (Sir Robert Balchin) a distant relation to Sir John Balchin who died in the sinking. Lord Lingfield is closely associated with Odyssey and 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 make money for shareholders by finding, salvaging and selling off artefacts from high value historic wrecks. However this business plan has not been entirely successful and the company’s accounts show that it has lost $147 million over recent years. These losses have been funded over the years by regularly raising new equity in the stock market. In 2007 they illegally salvaged 17 tonnes of silver and gold coins from the Spanish sovereign immune frigate Nuestra Senora de las Mercedes, sunk by the British in 1804 off Portugal, and flew the cargo through Gibraltar back to Florida. Spain has however pursued Odyssey through the courts in the USA for 5 years in order to retrieve its possessions and won. The US courts ordered Odyssey to release 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 why they were chosen. Unfortunately this is not correct. In June 2010 ProMare, a well-resourced US maritime archaeological charity operating out of Plymouth, offered to make quarterly surveys of 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 has responsibility within MOD for managing Royal Navy historic wrecks, never acknowledged this offer or even contacted ProMare for a further 13 months. We do not know why this was the case.
In late January 2012 MOD announced that the wreck of the Victory had been gifted to the Maritime Heritage Foundation but that all work would have to be carried out in accordance with the Annex to the 2001 UNESCO Convention. A major component of the Annex is that underwater cultural heritage may not be sold off or exploited for commercial gain. At the same time an Advisory Group was set up within Navy Command, with members from the National Museum of the Royal Navy, English Heritage and an observer from DCMS, to advise the Secretary of State for Defence and the MHF whether its proposals are in accordance with the Annex. An Expert Panel, consisting of acknowledged archaeological and legal experts, was also 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 saying that it had entered into what amounts effectively to a commercial salvage contract with the MHF (See Appendix 1) whereby not only will Odyssey be paid for any actual archaeological work carried out but that the MHF will also have to pay additional amounts varying between 50%-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 National Museum 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 Wessex Archaeology, 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 has sufficient 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 which is of little or no archaeological significance. Typically the process requires analysis of the material, assessment of its archaeological (not commercial) value and consultation. Odyssey maintains that its agreement with MHF is compatible with the British Museum’s de- purpose of raising funds (See Appendix 3). Furthermore under this agreement MHF’s deaccessioning 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 the UNESCO 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/generalprinciples/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 UNESCO Convention minuted a recommendation to States Parties saying that it:
Whilst we are not in principle against the management of historic vessels by properly resourced and managed charitable trusts (e.g. the Mary Rose Trust and the proposed transfer of HMS Victory 1765 to the National Museum of the Royal Navy with a £50 million dowry) it is not apparent that the MHF has any financial, archaeological or management resources of its own. It is unable to respond to letters and appears to rely wholly on the archaeological advice and financial resources of Odyssey who have a clear conflict of archaeological and financial interest.
If the MHF has no discernible financial resources, and there is currently no evidence of the Foundation seeking such resources, the only apparent way that it can finance work by Odyssey on 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 its shareholders 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 the site is only normally justified under the Annex of the UNESCO Convention if the site is seriously threatened by disturbance, whether caused by natural or human forces, or if there is a serious and fully financed research agenda. By engaging Odyssey to conduct a survey to establish whether there is any site disturbance justifying excavation, having at the same time entered into a contract whereby Odyssey is remunerated for any excavation subsequently carried out, MHF has created a most unfortunate conflict of financial interest for its archaeological sub-contractor. It is now in Odyssey’s financial interest to establish site disturbance and therefore the objectivity of its archaeological advice could be questioned. This raises questions as to prudent governance by a heritage charity and the initial surveys should have been carried out by an independent archaeological contractor with no vested financial interest in the outcome. Odyssey recently submitted their Project Design to MOD (note that is not the MHF’s Project Design but Odyssey’s). Odyssey has announced that its Project Design is consistent with the Rules of the Annex and that they are expecting to receive permission to start excavating the site in early summer 2012. In other words, MOD has done precisely what it said it would not do in its Consultation Response. It has effectively handed over one of the UK’s most nationally and internationally important wreck sites to a firm of commercial salvors. In so doing MOD and the UK have also suffered huge reputational damage throughout the world.
When MOD announced that it proposed to transfer HMS Victory (1765), Nelson’s Victory now in Portsmouth, to a charitable trust the MOD made the following announcement:
“The Parliamentary Under-Secretary of State for Defence (Mr Andrew Robathan): I am pleased to inform the House that I am today laying a departmental minute, the contents of which are replicated below, which proposes the transfer of HMS Victory and its contents and fittings to the HMS Victory Preservation Trust. This is a new charitable trust which has been established for the purpose as part of the National Museum of the Royal Navy.” Departmental Minute Dated 6 March 2012 Concerning the Gift of HMS Victory to the HMS Victory Preservation Trust: “1. It is the normal practice when a Government Department proposes to make a gift of a value exceeding £250,000, for the Department concerned to present to the House of Commons a minute giving particulars of the gift and explaining the circumstances; and to refrain from making the gift until 14 parliamentary sitting days after the issue of the minute, except in cases of special urgency.”
MOD has stated that no Departmental Minute was required for the gifting of HMS Victory 1744 although the value of the wreck is well in excess of £250,000 on the basis of the 75 bronze cannons alone, let alone any bullion that Odyssey alleges is on board. Although the circumstances appear identical to Victory 1765, why was no Departmental Minute issued? As a consequence no opportunity was given to the House of Commons to publicly question the transfer before it took place and to question the suitability of the Maritime Heritage Foundation to receive this gift.
This regrettable situation raises strong doubts about the capacity of the MHF to manage the wreck of the Victory and raises serious concerns about the procedures employed by Navy Command in advising MOD to gift the wreck to the MHF. It also raises considerable doubts about the way DCMS is carrying out its lead role within Government for protecting underwater cultural heritage.
The following questions therefore need to be asked:
To the Ministry of Defence:
To the Department for Culture, Media and Sport:
To the Chairman of the Maritime Heritage Foundation:
Joint Nautical Archaeology Policy Committee May 2012 www.jnapc.org.uk
Odyssey Marine Exploration Executes Agreement with Maritime Heritage Foundation for Admiral Balchin's HMS Victory Shipwreck Tampa, FL – February 2, 2012 - Odyssey Marine Exploration, Inc. (NasdaqCM: OMEX), a pioneer in the field of deep-ocean shipwreck exploration and archaeology, has executed an agreement with the Maritime Heritage Foundation for the financing, archaeological survey and excavation, conservation and exhibit of HMS Victory (1744) and artifacts from the shipwreck site. HMS Victory was a British First Rate Warship that sank during a storm in 1744 while under the command of Admiral Sir John Balchin.
In 2008, Odyssey discovered HMS Victory and is salvor-in-possession of the wreck. After a period of joint consultation between the UK Ministry of Defence and the UK Department for Culture, Media and Sport, and a public consultation period, the remains of HMS Victory were transferred to the Maritime Heritage Foundation in January 2012. The Foundation, a charity established to locate shipwrecks, investigate, recover and preserve artifacts to the highest archaeological standards and to promote knowledge and understanding of Britain’s maritime heritage, has now assumed responsibility for the future management of the wreck site.
“We are honored to work with the Maritime Heritage Foundation on the Victory project, an important piece of British naval heritage. Since our discovery of HMS Victory, we’ve continued to monitor the site and have sadly noted significant changes to the site including four ton cannon that have been dragged and damaged, as well as the illicit recovery of a cannon by another salvor, signs that the idea of preserving the site in situ is clearly not practical,” said Greg Stemm, Odyssey CEO. “We plan a phased approach which will include an initial non-disturbance survey and expect to begin the archaeological excavation as soon as practical.”
“We hope that this site will give us a unique insight into the world of the mid-eighteenth century Royal Navy,” stated Sir Robert Balchin, the Chairman of the Maritime Heritage Foundation. “We are very concerned that natural erosion, damage from fishing vessels and illegal looting may endanger the wreck and therefore we have planned an archaeological survey that will record the site before it deteriorates further. Odyssey Marine Exploration has proved its expertise and we are looking forward to working with them to protect the maritime heritage associated with Balchin’s Victory.”
Pursuant to the executed agreement Odyssey has produced an extensive project design for the archaeological excavation of the site, including a complete plan for recording, documentation, conservation, publication and public education. Once the project plan is approved by the Foundation, fieldwork is expected to begin in early 2012, depending on weather conditions and equipment availability.
The agreement calls for Odyssey’s project costs to be reimbursed and for Odyssey to be paid a percentage of the recovered artifacts’ fair value. The preferred option is for Odyssey to be compensated in cash. However, if the Foundation determines, based on the principles adopted for its own collection management and curation policy, that it is in its best interest to de-accession certain artifacts, the Foundation may choose to compensate Odyssey with artifacts in lieu of cash.
A Private Curatorship Program will be established for certain artifacts from the site considered by the Foundation to be suitable for de-accession to prevent their irretrievable dispersal and to allow ongoing scientific study.
Paragraph 5.5.45 of Wessex Archaeology report HMS Victory – Wessex DBA 240310.pdf prepared for MOD/DCMS on 24th March 2010.
The evidence for the theory that the Victory was carrying a valuable cargo in the form of valuables taken from prizes and/or a private cargo of specie/bullion is currently unsubstantiated.
The following conclusions can be reached with regard to the potential presence of valuable prize cargo on Site 25C. They assume that the site has been correctly identified:
In respect of the potential for the presence of a significant quantity of bullion, the following conclusions can be drawn:
It is therefore very unlikely that a significant quantity of valuable prize cargo or bullion is present on Site 25C. APPENDIX 3
BRITISH MUSEUM POLICY ON DE-ACCESSION OF REGISTERED OBJECTS FROM THE COLLECTION
2.1 This document sets out the policy of the Trustees of the British Museum on the exercise of their powers of de-accession from the Collection whether by sale, exchange, gift and other disposal (including disposal in response to any third party claim for the restitution or repatriation of an object in the Collection).
3. The Legal Duty and Powers of the Trustees
3.1 The British Museum Act 1963 (“the Act”) is the governing instrument of the Trustees of the British Museum. 3.2 Objects vested in the Trustees as part of the Collection of the Museum shall not be disposed of by them otherwise than as provided by the Act1. Therefore the Trustees’ power to de-accession objects from the Collection is limited and there is a strong legal presumption against it. This legal presumption is reinforced by an absolute prohibition against de-accessioning where any object has been vested in the collection subject to any trust of condition against de-accessioning imposed on the Trustees at the time of its acquisition2. The Trustees would not want to disregard the wishes of donors, and there in any event are only very limited circumstances in which it would be possible, with the consent of the Museum’s charity regulator to set this prohibition aside3. 3.3 Decisions to dispose of objects comprised within the Collection cannot be made with the principal aim of generating funds though any eventual proceeds from such disposal must be used to add to the collection4. The Trustees do not have the power to sell, exchange, give away or otherwise dispose of any object vested in them and comprised in the Collection5 unless (a) the object is a duplicate of another object held in the collection, or (b) in the opinion of the Trustees the object is unfit to be retained in the 2 Collection and can be disposed of without detriment to the interests of the public or scholars6; (c) it has become useless for the purposes of the Museum by reason of damage, physical deterioration, or infestation by destructive organisms7. 3.4 Objects that are duplicates: The Trustees do not normally de-accession duplicate objects from the Collection unless they are identical in all material respects (see 3.9 below). 3.5 Objects that are “unfit”: The Trustees would not normally consider that an object that has been added to the Collection could be regarded as “unfit”. Before concluding an object was unfit, the Trustees would have to be satisfied that it could be disposed of without detriment to the interests of students or the wider public. 3.6 Human Remains: See the Trustees’ Policy on Human Remains. 3.7 Holocaust-Spoliation: Until 12th November 20198 the Trustees have the power to transfer an object from the collection if an Advisory Panel appointed by the Secretary of State has recommended the transfer and the recommendation has been approved by the Secretary of State9 where a claim is made in respect of an object related to events in the Nazi era (1933-45). Notwithstanding any recommendation of an Advisory Panel or any approval of the Secretary of State, the Trustees will themselves make their own independent determination whether to exercise the power in any particular case, and would, normally, not do so unless satisfied that: 3.7.1 any claimant had a strong moral claim to the transfer of an object claimed and had the authority to represent all heirs of the original owner of that object; 3.7.2 any object claimed was lost to the original owner as the consequence of wrongful action of the National Socialist Government of Germany or its collaborators in Nazi occupied Europe; 3.7.3 the victim of such wrongful action (or his/her heirs) had not previously been justly and fairly compensated for the loss; and 3.7.4 the transfer of the object represented the best solution to the claim after giving due weight to the importance of the object to the Museum’s collection and circumstances in which the object was acquired by the Museum. 3.8 National Museums and Galleries: There exist limited powers10 for the Trustees to transfer objects in the Collection, by way of sale, gift or exchange, to any of the 3 listed institutions in the United Kingdom 11. 3.9 The charitable status of the Museum: The Museum is an “exempt” charity12 and the Trustees are therefore subject to the English trust and charity law and the supervision of the Attorney General/the Charity Commissioners in the exercise of their legal powers and duties. 3.10 Procedures: In those exceptional cases where the Museum is legally free to dispose of an item from the Collection, any decision to do so will be taken by the Board of Trustees only after full consideration of the merits of the case by reference to the principles set out above and on the basis of curatorial, legal and other appropriate advice and authority. Where there is an external claim for the de-accessioning of an object within the Collection, the Trustees shall regard de-accession as a last resort that will only be considered if they regard it as the only fair and sufficient response to the claim. Once a decision to dispose of an object from the Collection has been taken, the Trustees would normally expect that, in the absence of strong reason to the contrary (such as a strong personal claim to which paragraph 3.7 applies), the object should be transferred to another institution within the public domain rather than to private individuals or organisations (particularly where there is a risk that the object will be reburied, disappear or be destroyed). Full records will be kept of all such decisions and the items involved and proper arrangements made for the preservation and/or transfer, as appropriate, of the documentation relating to the items concerned, including photographic records where practicable. 3.11 Any object proven unfit for retention in this collection or other public collections shall be disposed of in a way that prevents it being rediscovered and mistakenly reinterpreted.
In the annual assurance statement Keepers shall confirm that this policy is understood and implemented by the staff in their departments
This Policy will be reviewed from time to time and at least once every five years. In the event that significant changes to the Policy are made, every reasonable effort will be made to notify stakeholders, including the Council for Museums, Libraries and Archives.
This Policy was approved by the Trustees of the British Museum on 4 March 2010 and will be reviewed no later than 2015.
1 ss 3(4) the Act 2 s 5(1) ibid; s 47(4) Human Tissue Act 2004; s 2(6) Holocaust (Return of Cultural Objects) Act 2009 3 ss 26 & 27 Charities Act 1993(expediency in the best interest of the Museum; or exceptional moral circumstances) 4 Where an object has been acquired with the aid of an external funding organisation, any conditions attached to the original grant will be followed including the repayment of the grant if appropriate 5 ss 3(4) the Act 6 ss 5(1) ibid (nb: where an object has become vested in the Trustees by virtue of a gift or bequest these powers of disposal are not exercisable as respects that object in a manner inconsistent with any condition attached to the gift) 7 under ss5(2) ibid 8 s 4(7) Holocaust (Return of Cultural Objects) Act 2009 9 ss 1 & 2 ibid 10 s 6 Museums and Galleries Act 1992. 11 Schedule 5, Museums and Galleries Act 1992 12 see section 3(5) and Schedule 2 paragraph (p) Charities Act 1993
Use your Facebook login and see what your friends are reading and sharing.
Now bringing you back...