H.M.S. Victory: Discovery of the 18th Century shipwreck - Intrigue surfaces

From a navigation, weather and planning standpoint, any passage made between the Cherbourg peninsula and the northern French Coast will rank among the most interesting any sailor will make. Extreme tides, islands, vast archipelagos of low lying rocks, and swift unforgiving changes in the weather mark this area as one where great caution should be exercised.

The stretch of water and islands surrounding the Casquet rocks is notorious. It is a fact of life that dense fog develops in this region in a most disorientating manner. The modern yacht is equipped with radar, GPS, and a host of instrumentation to aid navigation and the ability to forecast the weather. Despite this, on the water the sense of danger is palpable and inescapable. In such areas you can never relax, and you must rigorously recheck your tidal calculations and your charts as you proceed. Every time the windspeed alters, your speed is effected, and the direction the vessel is travelling in may not be reflected in the compass.

Loss of H.M.S. Victory on the 4th October 1744 by Peter Monamy (1681-1749).

1744 was not a good year for the Royal Navy due to significant losses to the French and "through the stress of weather". On 28th July 1744 H.M.S. Victory, under the command of Admiral Sir John Balchin, left the English Channel to relieve a French blockade of English vessels in the mouth of the Tagus. Once the much needed transports and store-ships were liberated, H.M.S. Victory escorted them onwards securing a safe passage to Gibraltar. The Admiral intending to return to the Channel with his ship encountered a severe storm on the 3rd October parting with other ships in company.

On or about the 4th and 5th October the inhabitants of Alderney, and the people in charge of the Casquet Light reported hearing the thundering boom of H.M.S. Victory's guns, being fired to signal her distress and call for assistance. These calls went unanswered due to the severity of the storm. Estimates of the human loss vary and conservative estimates suggest 1150 men perished leaving no survivors and wreckage from the ship washed up on shores throughout the Channel Islands over the following days. On 19th October the Daily Advertiser published a letter of a Guernsey merchant named Nicholas Dobree reporting the following:

"This last week there has been... Pieces of Wreck found upon our Coast; among others, two Topmasts, one 74, the other 64 Feet Long, mar'd in white lead VICT; and also a Topsail -Yard, 64 Feet long, mark'd also in white lead Victy, upon the head of the Naile to the Masts and Yard is the Arrow; to that we greatly fear the Victory has been lost upon our Coasts"

The H.M.S. Victory was reported generally as not handling very well and had been damaged in a storm within the previous year. In the October storm she lost at least two of her topmasts and sustained other significant damage to spars, which would have restricted her ability to maneuver in these conditions. This type of damage would not necessarily mean she was going to sink with the loss of all hands on board unless there were a number of other factors involved. The storm conditions would add further to the confusion and chaos on board because it must have been impossible to pinpoint the ships position given the navigational aids available at the time.

The H.M.S. Victory that sank in October 1744 predates the ship of the same name now permanently dry docked in Portsmouth Naval Dockyard. She was launched on 23rd February 1737, after having spent a very long period of 11 years on the stocks. The construction may have suffered from a combination of poor funding, poor supplies, and indecision. It has been suggested that her design was completed in compliance with the 1733 Navy Board proposals, and when launched was one of the largest warships of her day being armed with 100 bronze guns. The 1733 proposals attempted to update the design of new ships to be constructed for the Royal Navy. In essence, the breadth of the ships was increased and holds were made deeper in an attempt to keep in step with new developments in French naval architecture, brought about under the supervision of Jean-Frederique Phelypeaux, Comte de Maurepas.

In an intriguing twist, the Comte de Maurepas had placed shipwrights in a number of the naval dockyards in an attempt to spy on work, design and construction methods in the English dockyards. This appears to have occurred more frequently than one would anticipate at this period but that is another story! One such shipwright, Blaise Ollivier, who in time became Master Shipwright to the King and worked in the French Dockyard at Brest, had an opportunity to examine the Victory in 1737 and reported as follows:

"The ship of 100 guns called Victory which they are building in one of the dry-docks at Portsmouth, has the same length, the same breadth, and the same depth in the hold as the Royal Sovereign. She has 14 ports on either side of the gundeck, 15 ports on either side of middle deck and on the upper deck, 3 on the forecastle, 7 on the quarterdeck and 2 on the poop... The midship bend of this ship is rounded; her floors are full and have a fair run; she has a great fullness at her height of breadth; her capacity is very great, yet her upper works are scarce suitable for her lower body, for she is deep waisted with much sheer."

On the 29th May 2008, Odyssey Marine Exploration Inc. in an effort to protect its legal interests filed papers relating to two wrecks in the English Channel. The papers related to an Admiralty Arrest Complaints filed in the U.S. District Court for the Middle District of Florida and inter alia they state that the wreck is outside of territorial waters and seek exclusive salvage rights. On the 2nd February at a press conference in London, Odyssey Marine Exploration Inc. released a more detailed report on a wreck they identified as H.M.S. Victory. This report detailed finds, the ships construction, and history of the wreck site. The wreck is reported to be in 330 feet of water, 62 miles from the Casquet rocks in an area which is heavily fished, a factor cited for the deterioration of the wreck site. The report also goes on to speculate and investigate the possibility of gold bullion, silver and other precious objects at the site. These are primarily based upon the engagements and duties undertaken by H.M.S. Victory in the three months prior to its loss.

Mr Greg Stemm, CEO of Odyssey Marine Exploration was reported in the Telegraph to say: "The money is not as important as the cultural and historical significance of the discovery. It is a monumental event, not only for Odyssey but for the world. It is probably the most significant shipwreck find to date. HMS Victory was the mightiest vessel of the 18th century and the eclectic mix of guns we found on the site will prove essential in further refining our understanding of naval weaponry used during the era."

Odyssey Marine Exploration Inc. stated they were negotiating with the British Government to establish some basis for collaboration in the project. Separately, the British Ministry of Defence were reported to state "Assuming the wreck is indeed that of a British warship, her remains are sovereign immune... This means that no intrusive action may be taken without the express consent of the United Kingdom". The Ministry of Defence statement may not be up to date, because Odyssey Marine Exploration Inc. has released further information by way of a press release announcing a partnership agreement has been put in place for the H.M.S. Sussex, and a similar agreement has been put in place for the H.M.S. Victory. This appears to be either confirmed or referred to on the 3rd February, when the Telegraph reported that a deal has been struck between the Ministry of Defence and Odyssey Marine Exploration Inc. Despite the public announcements by both sides, the fact remains two bronze cannon have been raised to date [a 12 pounder and a 42 pounder] and this strongly suggests permissions have been obtained and negotiations have been ongoing for some time.

A bronze cannon bearing the crest of George I - Photo: Associated Press

There is obviously some history between the parties, and precedent to these discussions. Odyssey Marine Exploration Inc. has had similar negotiations with the British government in connection with the wreck of H.M.S. Sussex, which sank near Gibraltar in 1694. The agreement concerning the H.M.S. Sussex negotiations is the subject of an official objection by Spain, which involves a dispute over the source of a significant amount of coin on board.

The Spanish government and Odyssey Marine Exploration Inc. have met before, and their representatives continue to meet on a regular basis at a Court house in Tampa, Florida.
Odyssey Marine Exploration Inc. identified the site of a wreck they called "Black Swan" in or about May 2007, then raised and exported the cargo to an undisclosed location in Florida. Odyssey claimed the identity and nationality of the ship has not yet been determined. Meanwhile, the gold and silver coin recovered was reported to have a value of $500M. Spain argues this ship was actually the Nuestra Señora de las Mercedes, a Spanish navy frigate which sank in 1804 and claim that that the wreck was never abandoned. In August 2008, Peru also filed papers arguing for a claim on the valuable haul. This probably relates to the origin of the coins among the hoard, identified as pieces of eight minted in Peru in 1803; the Nuestra Senora de las Mercedes left the port of El Callao near Lima in April 1804.

The identity of the ship and principle of "abandonment" are key to the matter disputed in the Florida Court and all ship wrecks. The law of abandonment is behind the right, title, or ownership of sovereign property and the concept that it is not lost to a government due to the passage of time, or by neglect or inaction, and applies to wrecks lost in territorial, foreign and international waters. The principle is preserved in American Law, the English Common Law and Articles 95 and 96 of the United Nations Convention on the Law of the Sea (1982). Article 95 states, "Warships on the high seas have complete immunity from the jurisdiction of any state other than the flag states," and Article 96 continues, "Ships owned or operated by a state and used only on government noncommercial service shall, on the high seas have complete immunity from the jurisdiction of any state other than the flag state."

Hence, if the Florida Court finds that Spain and/or Peru have title to the wreck, and did not abandon the wreck, the proceeds of the artifacts recovered from the wreck called "Black Swan" will be returned to the rightful flag state(s), and not distributed under the International Convention on Salvage (1989) yielding the salvors up to 90% of the proceeds.

Much debate has taken place in recent years arising from the right of a sovereign state to claim a shipwreck. This debate has been applied to a framework in recent years by UNESCO's adoption of the Convention on the Protection of the Underwater Heritage (2001) which came into force on the 2nd January 2009. This Convention is based on four main principles: the obligation to preserve underwater cultural heritage; in situ preservation, i.e. underwater, as a preferred option; no commercial exploitation of this heritage; and cooperation among States to protect this precious legacy, to promote training in underwater archeology, and to raise public awareness of the importance of sunken cultural property. The Convention does not arbitrate ownership claims nor prejudice the jurisdiction or sovereignty of States. The Convention’s Annex establishes rules for activities directed at underwater sites and these rules are widely recognized by archaeologists.

To date 20 States have ratified the treaty including Spain. Notably the United States Government and British Government do not appear on the list of States, however the British Government expressed an interest in ratifying the treaty as far back as 2005. The United States Government has strict laws dealing with the treatment of its Navy's shipwrecks, preservation of the sites, and treatment of the sites as war graves. As a matter of policy, the United States Government does not grant permission to salvage sunken warships that contain the remains of deceased servicemen. One cannot but feel that the passage of time has removed some of the reverence that should be applied to the H.M.S. Victory site. In comparison, today we still shiver at the thought of the loss of a liner on her maiden voyage, which sank in the north Atlantic on the 14th April 1912. The intrusion of remote controlled equipment on that wreck site and the removal of artifacts did spark a controversy at the time, but we were seduced by the images and artifacts of a lost world which returned to the surface.

The Telegraph reports Mike Williams, an expert on maritime law at the University of Wolverhampton and secretary of the Nautical Archaeology Society, is among those who have deep concerns about an unregulated industry trawling the oceans for hidden riches. He stated as follows:

"There are some horrendous examples of commercial archaeological salvage companies destroying valuable finds because they are driven by a commercial imperative... Perhaps the most notorious involved a Chinese wreck with a cargo of Ming pottery in south-east Asia. The salvage company discovered a complete packing case full of china, which was covered with Chinese symbols and would have been invaluable to any historian studying the period. But the diver who found it simply jemmied it open with a crowbar to get to the pottery inside, and the crate was fragmented and disappeared on the current."

The discussion of a possible fortune in silver and gold lying at the wreck site appears to be the primary motive for the investigation of the H.M.S. Victory site; the investigation and excavation of a Georgian ship a lesser one. Odyssey Marine Exploration Inc. argue that it is unlikely the British Government could undertake such an investigation due to the cost involved and as a result they are best placed and have the expertise to carry out the work.

Carrying out an archaeological survey and investigation of a site necessitates its destruction and the removal of artifacts. It is difficult to reconcile the desire of the British Government, (whose predecessors excavated and raised the Mary Rose in an open and ethical manner), to sign up to the UNESCO Convention and at the same time enter into contracts with a publicly quoted commercial company, which can do little to disguise it's chequered history. One can only hope that whatever happens, the job will be carried out in a correct and ethical manner. The coming months will no doubt open up this debate further, because it is difficult to cover up the hypocrisy, double standards, and the flagrantly cheap attitude of cashing in on cultural heritage involved.