The Law of the Sea : A Legal Thriller

by Dave Gerard

  A painting of Albuquerque on Wikipedia showed an imperious-looking man with a gray beard that reached down to his waist. He was dressed in a rich robe and holding what might have been a baton or a telescope. He looked like a cross between a rabbi and a conquistador. To ancient Portugal he was a hero. But it wasn’t hard to imagine that the people of Asia saw him as a murdering savage who took their wealth, their land, and even their young.

  In life, Albuquerque had been a tremendously ambitious man. The Commentaries referred to him as “the Great,” which was a clear reference to Alexander the Great, the ancient Greek warlord who had inspired so many copycat conquistadors. And the title of the Commentaries was an obvious parallel to Julius Caesar’s famous Commentaries of the Gallic War. Caesar’s Commentaries were his own personal account of his military exploits in Gaul (modern-day France), written in the same third-person style as Albuquerque’s. Indeed, some called Albuquerque the “Portuguese Caesar,” and the influence was hard to deny.

  The reference also had a dark side. Caesar had returned to Rome a rebel, and after winning the civil war, he had usurped the power of the Senate, laying the foundation for the end of the Republic and the beginning of the Roman Empire. There had been similar whispers about Albuquerque toward the end of his life.

  During his long absence from Portugal, Albuquerque’s enemies convinced the King that Albuquerque planned to declare himself a sovereign in Asia. Fearing this, the King replaced Albuquerque as Viceroy with one of his rivals. This order was later countermanded, but Albuquerque died before he knew that. So his life ended on bitter note. Posthumously, King Manuel was convinced of Albuquerque’s loyalty, and gave his blessing to Albuquerque’s son Braz, who later published the Commentaries.

  I looked out the library window. It had grown dark. I closed the book and sat back in my chair to reflect.

  I thought about what I knew for certain. First, the Flor de la Mar sank in the Strait of Malacca, somewhere off the coast of Sumatra. Second, it sank on a reef, close to the shore. Third, many well-prepared expeditions had set out to find the Flor de la Mar, and none had succeeded.

  This begged the question: How did David Marcum and Lloyd Gunthum find the Flor de la Mar where so many others had failed? And how had the ship remained hidden for all these centuries in one of the busiest shipping lanes in the world?

  The more I thought about it, the more I believed that Marcum must have stumbled upon new information. An old record, or a new piece of the puzzle. Something that no one else knew. Or maybe he put something together in a way no one else had before. But what was it?

  Later that evening, back at my apartment, I cracked open a beer and plated a steaming hot carton of drunken noodles from my favorite Thai restaurant. According to an article I had read online, takeout tasted better if you put it on a plate. So I did that, and took my plated noodles to the TV for an episode of The Dominator. I found myself grinning with anticipation. Funny how little things will make your day.

  The Dominator had been through some rough fights lately. His face was starting to look like a side of beef gone bad. I watched him flex his huge shoulders as he stepped into the ring. They were completely inked with old green tattoos. His opponent today was named The Vanquisher. I might have felt nervous, wondering if today would be the day The Dominator’s reign would end. But I looked at his bald head and grim eyes and knew he couldn’t lose. Not now, not ever.

  Today’s episode featured a sideshow about a court case The Dominator was involved in. He was being sued by The Subjugator, the guy he had knocked out in brutal and unscripted fashion in season two. The two wrestlers faced off in court, dressed in suits instead of speedos. “Dominant Jurisdiction,” boomed the narrator, in a voice as heavy as molten lead. I smiled and settled in to watch the show.

  Then I froze, and dropped my chopsticks to the floor.

  That was it. That was the answer. In a flash, I knew how we were going to beat the Odyssey Marine ruling, do an end-run around Rockweiller, and get the hell back into the Marcum case.

  I de-plated my drunken noodles, traded my beer for a Red Bull, and cracked open my laptop. It was going to be a long night.

  * * *

  3 The Commentaries of the Great Afonso Dalboquerque, Second Viceroy of India, Volume III, Translated from the Portuguese Edition of 1774, with notes and an introduction by Walter de Gray Birch, F.R.S.L.

  TWENTY-TWO

  The United States District Court for the Southern District of Florida was in a new building, made of blue glass with white trim. It was built to evoke a ship, and one side of the building crested higher than the other, like the prow of some great vessel. To me, it looked more like a giant blue wave about to crash down on my head. Modern art is all in the eye of the beholder, they say.

  The courthouse looked considerably better, in my opinion, than its Galveston counterpart. But it lacked something. A certain solidity, maybe, that comes with age. The Galveston courthouse had withstood hurricanes that had levelled half of Texas. I doubted this courthouse had withstood anything stronger than a lawyer with yacht money.

  Inside the courthouse, there was a great blue well of windows extending upward through a dozen floors into a great skylight. Somehow it reminded me of the wall of coral I had dived with Trevor Thompson, but reversed. This time, the void was up instead of down, toward the light instead of the darkness.

  There was a fair amount of press at the hearing, which was the first to be convened in front of the Honorable Judge Jaclyn Merryweather, presiding. I saw Bock discussing the case with a reporter. I caught a snatch of his conversation as I walked by. He said he was “utterly confident” that the judge would award them possession of the wreck. The reporter seemed taken by his assuredness.

  Remington ducked past all of this without a glance and walked into the courtroom. No one gave us a second look. The courtroom was spacious and paneled in warm wood. There were high-tech plasma monitors in front of the judge and the jury box, and a giant screen at the back of the room. They were part of some technological initiative that the court was testing.

  The courtroom was filled with lawyers, reporters, and spectators. Bock & Co. were there, including the usual trio and others I didn’t recognize. Lawyers for Portugal were there too, standing proudly toward the front. The Portuguese ambassador had flown down from Washington, D.C. for the occasion. There were also a number of well-dressed young men and women sitting toward the back, gossiping. I guessed they were law clerks for other judges in the building, come to watch the show.

  Remington and I passed the bar in the courtroom and sat down. The bar is what divides the place where the judge, the jurors, and the lawyers sit from where the public sits. There’s usually a swinging door that you have to pass through, like in an old saloon. In fact, the reason the lawyer’s test is called the “bar examination” is because once you pass, you can literally “pass the bar” in the courtroom. Fun fact I picked up while I should have been studying for the bar.

  Remington and I sat down quietly. After a while, the hubbub began to die down and everyone took their seats.

  I had been up late the past couple of nights. Remington had immediately seized on my idea, saying it was a good one. He and Kruckemeyer told me to “research the shit out of it” and put together the best legal brief I could. I spent several days doing that, with Cindy and Harder’s assistance. Then Remington had taken it over for a day and made it brilliant. We had filed it shortly before the hearing. I doubt that the Judge had read it yet, what with all of the heavy legal motions flying around.

  The bailiff called “all rise” as Judge Merryweather entered the room. Everyone stood up. Bock was in front, thrumming with anticipation. Judge Merryweather ascended the bench in her black robes. She looked to be in her early fifties, with a handsome face and raven-black hair that fell mid-shoulder. Merryweather was a well-respected judge who was said to make sound decisions. She sat down
and asked everyone to be seated as well.

  “Good morning everyone,” she said cordially.

  “Good morning,” chorused the assembled lawyers.

  “I see we have people from a lot of different places here today.” She looked around the courtroom. “Is counsel for Rockweiller Industries present?”

  Bock sprang up and quickly assured her that he was. “And I believe we have lawyers for the nation of Portugal as well?” she asked. The lawyers for Portugal stood up and affirmed that this was so. “Welcome,” Judge Merryweather said. “I am honored to have representatives from your great nation in our court today.” The Portuguese ambassador looked pleased.

  “The honor is all ours,” he said with an accent and a courtly bow.

  Judge Merryweather turned to another set of lawyers. They were young and serious-looking in dark suits and red ties. They were led by a handsome older man with a shock of gray hair. “I see that we are also graced with the presence of the Department of Justice, representing the interests of the Executive Branch of the United States.”

  The gray-haired man stood up. “I wouldn’t go so far as to say graced, Your Honor,” he said with a disarming smile. They seemed on familiar terms. “But you are correct.”

  “I presume you are here in amicus capacity only?” she queried. An amicus curiae, literally “friend of the court,” meant someone who wasn’t directly involved in the case, but had something to say. The United States would often submit amicus briefs in cases involving foreign nations. It was a way of expressing the views of the U.S. executive branch, which the court would consider, but was not bound by.

  “Yes, Your Honor. Amicus only. The United States isn’t seeking title to the res. Although I wish we were,” he added.

  “I think we all share that wish, counselor,” the Judge said, and everyone laughed. One of the perks of being a judge, I guess.

  “Very well,” Judge Merryweather said. “Ladies and gentlemen, I have studied in detail all of the various motions and pleadings before the Court. I can see that this is a case of importance to everyone involved, including foreign sovereign nations.

  “I understand that Rockweiller Industries and Portugal have reached an agreement regarding the disposition of the res, for which I commend them. However, we will nonetheless proceed with this admiralty action in the usual fashion. I would like to begin by setting a scheduling order, and then hearing everyone’s views on the case. I anticipate that you all will want some hefty confidentiality protections in place, given the nature of the matter.

  “For now, I’ll allow each party thirty minutes to make a statement. We will do that now, unless anyone has anything to say first.” She looked around perfunctorily. It was a formality. “Alright,” she said. “Let’s go ahead and…”

  But before she could continue, Remington got up and made his way to the front of the courtroom. The heels of his boots clicked distinctively on the hardwood floors, and every eye turned toward him. Remington approached the front and then stood quietly, waiting for the Judge to acknowledge him.

  “Yes, sir,” Judge Merryweather said.

  “Good afternoon, Your Honor,” he said formally. “My name is John Remington. I represent the Estate of David Marcum in this matter. Respectfully, I do have something to say before we begin.”

  Judge Merryweather looked at him, puzzled. “David Marcum. Yes, I do recall seeing something…” she shuffled through her papers, and one of her clerks handed her a brief.

  “I am sure that Your Honor has been receiving many filings, and this one may have slipped through the cracks,” Remington said. “There are many illustrious lawyers and important nations here today, and I don’t pretend to make that cut.”

  Judge Merryweather grinned at him. “You sound like you’re from Texas, sir,” she said. “How can you tell?” he replied in a deadpan drawl, and there was laughter all around.

  “Welcome, Mr. Remington. We are pleased to have you. Please speak your piece.”

  “Thank you, Your Honor. I’ll keep this short, because I know you have many things to hear today.”

  Remington clasped his hands behind his back and looked up at Judge Merryweather. “As you know, the threshold matter that any court must consider is jurisdiction.”

  Judge Merryweather nodded. Elementary stuff. I looked over at Bock. His eyes narrowed. I saw him almost sniff the air, as if he’d gotten a whiff of something he didn’t like.

  “As it happens,” Remington said, “a case involving this very res was filed several months ago, and is currently pending in the United States District Court for the Southern District of Texas, Galveston division.”

  Judge Merryweather raised her eyebrows. “Galveston?” she asked.

  “Correct, Your Honor.”

  “I was not aware of this.”

  “I don’t believe that Rockweiller Industries mentioned it.”

  Bock rose to his feet and addressed the Judge. “Your Honor, the Texas lawsuit is a wrongful death case,” he said dismissively. “It has nothing to do with this action.”

  “To the contrary,” Remington responded, “it has everything to do with this action. It involves the same res. It involves the same parties. And we believe that the wrongful death happened around the same time, and in the same place, as the discovery of the Flor de la Mar.”

  “Speculation and conjecture, Your Honor!” Bock said. “There’s no proof of that. And even if there was, I fail to see the relevance to this admiralty action.”

  Judge Merryweather, who had been looking back and forth between them like a referee at a tennis match, turned to Remington. “Mr. Bock does have a point,” she said. “Assuming all of this is true, what’s it got to do with this case?”

  “Why, that’s simple, Your Honor. If the Texas action involves the same case and controversy, then the Texas court has dominant jurisdiction, and this Court must immediately transfer this action in its entirety to the Southern District of Texas, Galveston Division.”

  At this, the courtroom broke into commotion. The lawyers were all talking to each other, and the reporters were all talking to the lawyers, trying to figure out what was going on. Judge Merryweather had to bang her gavel a few times to settle everyone down.

  This was the flash of insight that I’d had. Dominant jurisdiction was what stopped people from filing the same case in two different places. For example, if Al sues Bob in Houston, then Bob can’t just file the same lawsuit against Al because he wanted to be in Dallas. The first-filed court usually has dominant jurisdiction. The same principle applied to cases that were related. The tricky part was how similar the cases had to be.

  “Having two parallel cases would be a waste of time for everyone,” Remington continued. “It would also risk conflicting decisions, if Your Honor and the Judge in Galveston saw things differently.”

  “This is ridiculous, Your Honor,” protested Bock. “It’s pure gamesmanship. This case has no business in Texas. There’s nothing in the wrongful death suit that even mentions the Flor de la Mar. We have the right to file suit in the venue of our choosing.”

  Judge Merryweather regarded Remington. “Are the cases similar enough to warrant dominant jurisdiction?” she said doubtfully. “It seems a stretch.” Bock nodded vigorously, as if she had got the right answer in Jeopardy.

  “They are,” replied Remington. “And as to what business this case has in Texas, there is another fact that Mr. Bock failed to mention.”

  “And what’s that?”

  “Rockweiller filed a TRO to get back a piece of this very res in Houston, Texas. Mr. Bock should know, since he filed the TRO himself. Once a party intentionally invokes a court’s jurisdiction, he can’t very well claim that a suit over the same property doesn’t belong in Texas.”

  Judge Merryweather turned to Bock, frowning. “Do you have a response to this, Mr. Bock?”

  Bock splutte
red, caught on the backfoot. “The TRO has nothing to do with this. It…that was state court. And the TRO has since been dissolved. Further,” he added, grasping at something, “it would be inappropriate to have a case like this, involving sovereign nations, heard in some backwater court in Galveston, Texas. They don’t have the capacity to handle it. The Florida courts have superior expertise in these matters.”

  “I take exception to the notion that this Court has superior expertise to the Galveston Court, Mr. Bock,” Judge Merryweather said sharply. “Please watch your comments.”

  “Of course,” said Bock, not looking sorry at all.

  Judge Merryweather turned back to Remington and looked at him squarely. “Mr. Remington, does the case law really require a transfer in this situation?”

  The truth was, probably not. I’d done the research, so I would know. We had enough to make a colorable argument. We could say it with a straight face. But dominant jurisdiction was a stretch here. Remington said it probably wouldn’t fly, particularly with a judge as savvy as Merryweather. But we had a plan. Remington had drafted a pinch hitter, you see.

  “I believe a transfer is warranted,” said Remington. “However, Your Honor need not hear it from me. We took the liberty of filing our briefs in the Galveston court as well, so that the Judge there would have the benefit of the argument.” Judge Merryweather nodded. “When that Judge heard of this hearing,” Remington continued, “he thought it might be best to participate.”

  Judge Merryweather frowned. “I would certainly welcome the participation of a fellow judge. But I am not certain how he is planning to do so…”