Saturday, 28 May 2016

THE CASE OF THE DODDINGTON COINS.

wikipedia:

Doddington was an East Indiaman of the British East India Company (EIC). She made two trips for the EIC to Bombay, China, and Mokha. On her third trip she was sailing to India to remain there when she was wrecked on 17 July 1755 at Bird Island in Algoa Bay, near present-day Port Elizabeth.[3][4] The ship was carrying a hoard of gold belonging to Clive of India, which modern treasure hunters looted. The controversy over these depredations resulted in changes to international maritime treaties to better protect underwater cultural heritage.

The Doddington sailed from Dover on 22 April 1755 bound to Fort St George in India under the command of Captain James Sampson in the company of the Stretham (carrying Clive of India), Pelham, Edgecote, and Houghton. The ships were separated en route to Porto Praya, but re-united again at the port where they all stopped to take on provisions. On 27 May 1755, the three ships departed the Cape Verde islands together, but were once again separated after the master of the Doddington took a more southerly route than the other ships. After seven weeks, the ship rounded the Cape of Good Hope. After sailing eastwards for a day, the ship was on a heading of East-North-East, when at 1 am she struck a rock in Algoa Bay.
Doddington (East Indiaman) is located in Eastern Cape
Doddington wreck site
Doddington wreck site
Port Elizabeth
Port Elizabeth
Eastern Cape, South Africa
Of the original crew and passengers of 270, only 23 initially survived while the other 247 passengers and crew died with the ship. The castaways subsisted for seven months on fish, birds and eggs on a nearby island, which they named Bird Island.[Note 3] One of their number, a carpenter, was able to help them make them a sloop, the Happy Deliverance, on which they were finally able to get off the island on 16 February 1756.[3][5] The sloop was seaworthy enough to take the survivors on an eventful journey up the east coast of Africa via St Lucia and Delagoa Bay,[3][6] where the survivors sold her before travelling on to India. Captain Norton Hutchinson, now captain of the East Indiaman Carnarvon, took them on board and carried them to Madras.[7]

Salvage

The ship was carrying a consignment of gold and silver, known as "Clive of India's Gold", which was controversially looted in recent times by Port Elizabeth treasure hunters.[8][9] A third of the 1,200 gold coins were eventually returned to South Africa after a four-year legal wrangle in London. The high profile court case highlighted various shortcomings in both South African and international maritime law.[10] The United Nations Educational, Scientific and Cultural Organisation monitored the case closely, as it set an important precedent for the UNESCO Convention on the Protection of the Underwater Cultural Heritage that it subsequently published.

The Convention on the Protection of the Underwater Cultural Heritage is a treaty that was adopted on 2 November 2001 by the General Conference of the United Nations Educational, Scientific and Cultural Organization.[1] The convention is intended to protect "all traces of human existence having a cultural, historical or archaeological character," which have been under water for over 100 years.[1]:Art.1 This extends to the protection of shipwrecks, sunken cities, prehistoric art work, treasures that may be looted, sacrificial and burial sites, as well as old ports that cover the oceans floors.[3] The preservation of underwater cultural heritage is significant as it allows for the retelling of its numerous historical events. As part of its duty to conduct scientific research and provide continuous education on the importance of underwater cultural heritage, UNESCO strives to maintain these sites for the enjoyment of current and future generations. The convention may provide a customary framework to help raise awareness and seek to combat the illegal looting and pirating occurring in waters worldwide. As an international body, member states of the convention agree to work towards the preservation of sunken cultural property within their jurisdiction and the high seas.

Official Text
The official text of the convention sets out the obligations of the states parties in regards to the protection of underwater cultural heritage, defined in Article 1 as:
"all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years"[1]  (Waratah - 107 years)
Articles 1–4 define the convention and its objectives, as well as its relation to the United Nations Convention on the Law of the Sea (UNCLOS) and the law of salvage.[1]
Articles 5–12 define varying levels of obligations and procedures within the four maritime zones (Territorial Sea, Contiguous Zone, Exclusive Economic ZoneInternational Waters) defined by UNCLOS.[1]
Articles 13–21 define further obligations, such as seizing illicitly recovered underwater cultural heritage, cooperating with other states parties, and providing training in underwater archaeology.[1]
Articles 22–35 clarify a number of points relevant to the functional aspects of the convention, such as the creation of statutory bodies, the settlement of disputes between states parties, and modes of ratification.[1]
The Annex
In addition to the official text of the convention, an annex of 36 rules governs the practical aspects of activities directed at underwater cultural heritage. States parties are required to ensure that these rules are applied within their territorial sea and contiguous zone,[1]:Art.7–8 and also that they are adhered to by all nationals and flag vessels.[1]:Art.16
Rules 1–8 define general principles. Key among these are the complete prohibition of the commercial exploitation of underwater cultural heritage[1]:Rule 2 and the principle that in situ preservation should always be considered as a first option.[1]:Rule 1 The rules also cover aspects such as project design, conservation, documentation, and reporting.

Criticisms

Abstaining from signing the 2001 UN Convention, the United States has stipulated that the term "all traces of human existence" is too broad, legally and as a mechanism tool for the protection of underwater cultural heritage for the preservation of future generations.[20] A problem that may arise with the 100-year period is that the beginning of this period is not clearly identified in the Convention, nor in the LOSC [21]
A criticism of the LOSC Articles are that they are considered ambiguous and obscure in nature. Article 149 fails to specify the manner in which objects of an archaeological nature are to be preserved and disposed of, as well as which mechanisms should be instituted in their conservation so as to benefit all current and future generations [11]
With the discovery of the Spanish galleon San José by the Colombian Government, and in an effort to claim the galleon with all its cargo, the Spanish Government tried to use the convention as a measure to stop Colombia from salvaging the ship.[22] Article 13 recognises sovereign immunity over sunken warships, [23] but Colombia is not a participating member of the convention. Separately, Colombia has called the galleon as part of its submerged patrimony thus it's constitutionally binded to protect and preserve the warship.

Extract from: Art and Cultural Heritage: Law, Policy and Practice.

'Although South Africa supported the adoption of the provisions of the Convention at the UNESCO General Conference, the United Kingdom was not satisfied with the provisions included in the text and abstained from the voting on the adoption of the Convention. UK concerns centred on the extent of coastal state jurisdiction, the inclusion of warships in the scope of the Convention and the failure to explicitly limit the scope of the convention only to UCH (underwater cultural heritage) declared to be of archaeological or historical significance. The UK was also consistently opposed to any provision that would restrict the ability of private salvors to continue to recover and trade in underwater cultural heritage.

In the case of the Doddington in South Africa the following has been made clear. Historical wrecks are very different from other heritage sites and resources, and that they present different management and legal problems, which require different solutions. The assumption that the National Monuments Act was not only the appropriate piece of legislation for the prosecution of a wreck offence, such as the case of the Doddington coins, but that it had international applicability has clearly shown to be flawed. Fortunately the avenue of Admiralty Law was open in this case. It is clear, that the new compliance agency, SAHRA, (south African Heritage Resources Agency) will have to reconsider its approach to international cases in the future,.

Furthermore, disputes relating to wrecks will be heard in terms of different concepts of law in different courts that have different rules and procedures. This raises the appropriateness of the inclusion of historical wrecks in a piece of general heritage legislation like the Old National Monuments Act and the National Heritage Resources Act. The scrutiny to which both these pieces of legislation were subjected in the Doddington case has suggested that the provisions they contain relating to the protection of historical wrecks and artifacts are not clear, and that it is a flaw in both that the bulk of the legal provisions relating to wrecks are contained in the Regulations that accompany them, rather than in the legislation itself. In virtually all other countries with a rich shipwreck resource, separate legislation has been enacted for historical wrecks that acknowledges their unique legal status and management problems, and although the idea for a separate South African act is not new, it has never been properly considered. 

The case of the Doddington coins has thus served the important purpose of highlighting a number of fundamental problems and challenges relating to the management of historical shipwrecks in South Africa and to South African heritage legislation. It's greatest importance, however, lies perhaps in the fact that through this case, the South African Heritage Compliance Agency demonstrated to South Africa and the the world that it not only has the will to enforce the legislation, but that its decision to do so will no longer be judged entirely according to whether or not SAHRA thinks the case will be successful. The message is clear, the heritage authority won't tolerate the plundering of our cultural heritage.'    

The above illustrates the complexity of tackling cultural heritage relating to shipwrecks along our coast. In the case of Waratah, should her wreck ever be found, the extract makes it clear that unauthorized salvage of artifacts and trade will not be tolerated, further reinforced by the Convention, making the sale of such objects overseas, illegal. It is reassuring that the South African authorities view shipwrecks as a significant component of cultural heritage, to be protected, as it should be.

The problem is a conundrum.  Wrecks older than 100 years are difficult to locate, incurring great cost in the process. Unless there is a monetary salvage component I do not believe there are wealthy altruists lining up to explore the continental shelf off South Africa to enrich our cultural heritage by identifying those wrecks which have been lost to date. I am sure that it is why the UK had issues with the Convention and across the board prevention of salvors recovering and trading in underwater artifacts. Without such salvors, undiscovered wrecks would remain as such and hardly be a contribution to cultural heritage. 

If Waratah is located there is every chance she is silted over and the process of preserving the wreck and grave site would be a very significant challenge indeed. If the 'abandonment' issue is confirmed in the case of the Waratah, salvors would be entitled to recovering and selling valuable cargo, namely gold, silver, copper and lead. The challenge would be to extricate this cargo without damaging the wreck site. From what I understand, in addition to acquiring the various permits, including that from the Department of Customs, a project plan would have to be presented to SAHRA, which would outline a salvage operation that would not damage the local environment (underwater) and preserve the integrity of the wreck site. The exploration team would also have to be trained in underwater archaeology.

I believe that artifacts recovered would have significant meaning in the context of a museum, such as been the case with objects retrieved from the Titanic. But bearing in mind the wishes of descendants of those who were lost with Waratah, the disposal of such objects would need to be handled with sensitivity and care. 

The above extracts highlight an important initiative to protect UCH, but as the author suggested, specific legislation needs to be enacted in South Africa to prevent endless time and money wasting court procedures to reach an end goal of returning Waratah's legacy to the public domain. Illicit plundering of wrecks and trading of artifacts in the 'underworld' will not cease I fear, but if wrecks are publicised in terms of cultural heritage I do believe it will make it more difficult for illegal salvors to operate in the seas off our coast.



https://books.google.co.za/books?id=yvXTcGC5CwQC&pg=PA323&lpg=PA323&dq=plundering+shipwrecks+south+africa&source=bl&ots=8upt1QlJfb&sig=vkeIqkwsY51NDbC_n2kDpC1m5ko&hl=en&sa=X&ved=0ahUKEwjV_ozRn_rMAhUmK8AKHSX0AxwQ6AEINTAE#v=onepage&q=plundering%20shipwrecks%20south%20africa&f=false

1 comment:

Mole said...

A very significant post. I feel much better-informed after reading it. Thank you.