The Law of the Sea : A Legal Thriller

by Dave Gerard

  “Who is your current employer, Mr. Gunthum?”

  “Excel Resources, LLC.”

  “And you own a stake in the company?”

  “Yes.”

  “Excel Resources, LLC is majority-owned by Rockweiller Industries, is it not?”

  “Yes, it is.”

  “Would you say you effectively work for Rockweiller Industries?”

  “No. I would say I effectively work for Excel Resources, LLC.” There was just a hint of self-satisfaction in his response.

  After that, Remington went through an exhaustive history of Gunthum’s background, followed by point-by-point questioning of his work for Rockweiller Industries, founding of Excel Resources, past salvage & recovery operations, hiring and employment practices, revenues and tax records, and other such details. He also asked about Gunthum’s safety record, disputes with employees, lawsuits he’d been involved in, and more. This went on for hours. I grew bored, as did everyone else. The air in the room was stifling.

  Eventually, Remington reached the subject of Marcum’s death. I listened closely. But Gunthum told the same tale that his crew had. Marcum had disappeared on a dive and was presumed dead. The story sounded rehearsed, which I knew it was. But that didn’t mean it wasn’t true.

  Gunthum added a few more details now that the Flor de la Mar was public. He said that Marcum was in the water full time, examining the wreck site and salvaging its contents. With that amount of bottom time, Gunthum said it was no surprise, although it was regrettable, that something had happened.

  Gunthum was cool and collected under questioning. We were about five hours into the deposition when Remington finally asked the question I had been waiting for.

  “Did you have any type of contract with David Marcum?” Remington said. He asked it casually, like it was no big deal. But he tensed up as he asked the question. As did Gunthum. As did I.

  None of that tension showed in Gunthum’s voice. “No,” he said simply.

  “What about Excel Resources, LLC? Did the company have a contract with David Marcum?”

  “Yes.”

  I looked up sharply. What?

  “Pardon?” Remington said. He looked nonplussed, and I could tell he hadn’t expected that answer either. Did Gunthum really just come out and say it? I leaned forward intently, waiting on his next answer.

  “I said yes,” Gunthum repeated. “Excel Resources had a contract with David Marcum. An independent contractor agreement. I believe you have the relevant records.”

  “Oh,” said Remington. “Yes. That’s right. We do.” Remington fumbled with his notes for a moment. He looked unusually disconcerted. He recovered himself and turned back to Gunthum. “Did you, Excel Resources, Rockweiller Industries, or any of their agents, employees, affiliates, or subsidiaries, have any agreement with David Marcum, whether oral or written, which would have awarded Mr. Marcum a share of the Flor de la Mar?” he asked, looking Gunthum directly in the eye as he asked the question.

  “No,” said Gunthum. As if he had been born to answer.

  “Any contracts related to the Flor de la Mar at all?”

  “No.”

  “What about any agreements with David Marcum, of any kind, aside from the one you just mentioned?”

  “Well,” said Gunthum, finally cracking a smile, “we played poker a few times. I owed him a hundred bucks. Don’t tell anyone, though.”

  This drew some laughter from the lawyers, and eased the tension in the room. The atmosphere that Remington had slowly been building broke. And from that moment, I saw Gunthum relax. He leaned back imperceptibly, his arms folded across his chest, with just the hint of a smile on his face. This was a contest, and it seemed like he had won. This was our shot, and we had whiffed.

  After that, Remington took him through the aftermath of Marcum’s death, and cleaned up a few other details. Gunthum answered everything easily and with growing confidence. Then Remington switched tracks.

  “What type of scuba diving certification do you have, Mr. Gunthum?” he asked.

  “A few. PADI Master Scuba Diver. IDC Staff Instructor. ADCI commercial diving certification. Some others. You have a copy of my resume. I’d be happy to go over it with you.”

  “That’s fine, thank you. You also received scuba training during your time with the Navy SEALs, correct?”

  “That’s correct.”

  “How many dives have you done?”

  “Over my whole career?”

  “Yes.” Gunthum sat back and thought for a moment. “I couldn’t really say. Too many to count.”

  “Hundreds?”

  “Definitely.”

  “Would it be fair to say that you are an expert in scuba diving?”

  “Yes,” Gunthum said with a hint of pride.

  Remington nodded and flipped through his notepad. He took his time, unconcerned by the expectant faces waiting on his words.

  “Mr. Gunthum,” he said at last, “what is technical diving?”

  “Technical diving?” Gunthum looked at Bock, who shrugged, not knowing where this was going. “Technical diving involves diving past the normal depth limits.”

  “What are the normal depth limits?”

  “For recreational diving, about a hundred feet.”

  “Why is that?”

  “The deeper you go, the more things can go wrong.” There was a stir as this piqued interest around the table.

  “What sort of things?”

  “For one, a hundred feet is about the depth where nitrogen narcosis begins to set in.”

  “What is nitrogen narcosis?”

  “It’s like being drunk underwater. It causes impaired judgment and coordination. At greater depths, it can cause hallucinations, loss of vision and hearing, and in some cases, even unconsciousness and death.”

  “I see. What else can go wrong underwater?”

  “The bends.” There were murmurs around the table from those who knew what this was.

  “What’s that?”

  “The bends happens when you come up from depth too fast. When you’re deep underwater, the nitrogen in the air forms bubbles in your bloodstream and tissues. If you come up too fast, those bubbles expand, resulting in decompression sickness. Better known as the bends. Milder symptoms include joint pain, fever, and nausea. In severe cases, it can lead to tissue expansion or even rupture. If you come up from a great depth too fast, and you don’t get to a hyperbaric chamber, you’re a dead man. I’ve seen it happen.”

  I didn’t know where Remington was going with this. But everyone was fully absorbed in the testimony now. Bock nodded along subconsciously as he listened. Typically, a witness is supposed to answer narrowly during a deposition. Gunthum had been doing a good job of that. But now he was talking more freely. He felt that the game had been won, and seemed to be relishing his role as storyteller of the dangers of the deep.

  “What measures can divers take to mitigate the effects of nitrogen on deeper dives?” Remington asked.

  “You change the gas mix,” Gunthum explained. “Both nitrogen narcosis and the bends are caused by nitrogen. Air is made up of twenty percent oxygen and eighty percent nitrogen. Under pressure, the nitrogen starts to cause these side effects. So you use an air mixture with less nitrogen.”

  “What kind of air mixtures are available?”

  “The most common is nitrox. Nitrox has more oxygen and less nitrogen than regular air. It helps divers resist the effects of the nitrogen longer. On nitrox, a diver can go to a hundred fifty, maybe two hundred feet safely.”

  “I see. Why not lower than that?”

  “Because once you reach that depth, oxygen toxicity begins to set in. Compressed oxygen has its own problems. It affects the central nervous system. This can cause spasms, twitching, and convulsions. At extreme depths people experience seizures, which are
fatal if you’re underwater.”

  “What do divers do at depths even lower than that?”

  “At the lowest depths, divers will use trimix. This contains oxygen, nitrogen, and helium. Helium is an inert gas that doesn’t have the ill effects of the other two. So you can go to still greater depths.”

  My breathing slowed as I imagined being deep under the ocean, breathing a mixture of artificial gasses. I wondered how cold it was down there.

  “What kind of depths can you reach with trimix?” Remington’s voice was almost hypnotic by this point.

  “Hundreds of feet. Three, four, maybe even five hundred. But at those depths, everything is dangerous. And eventually, helium shows its own side effects. It can induce high-pressure nervous syndrome. I don’t know much about that. I’ve never been to that depth in scuba gear.”

  “Are there any gas mixtures that can take you deeper than that?”

  Gunthum shook his head. “I’ve heard of an experimental mixture called hydrox. It uses hydrogen, the only gas lighter than helium. But I don’t know much about it. There are other ways to go deeper. Atmospheric pressures suits. Saturation diving. But as far as scuba, several hundred feet is basically the limit.”

  “There were no atmospheric pressure suits or saturation diving equipment aboard the Excelsior, were there?” Remington asked the question casually. But I felt a twinge, as if someone had played a sharp note on a violin.

  Gunthum frowned. “No,” he answered.

  “Thank you,” said Remington, turning the page on his legal pad. “Now, I am going to hand you a document that was produced by Rockweiller Industries. It is an inventory of the equipment aboard the Excelsior.”

  Gunthum took the document, taking his time to flip through it.

  “I’ll direct your attention to page eleven, which contains records of scuba diving equipment. It lists eight scuba tanks, an air compressor, twelve masks, ten sets of fins, nine wetsuits of varying size, eleven weight-belts of varying weight, and a number of additional items. Do you see that?”

  “Yes.”

  “All of these tanks were filled with air, correct?”

  “Correct.”

  “There was no nitrox gas on board the Excelsior, was there?”

  A distinct pang rippled across the room as the listeners caught their first glimmer of where Remington was going with this.

  “No. There was no nitrox.”

  “There was no trimix gas, either, was there?”

  “No.” I saw the faintest hint of sweat break out on Gunthum’s forehead.

  “The only gas mixture available was air?”

  “That’s right.” Gunthum’s voice was calm. But he was breathing faster now.

  “Objection,” muttered Bock. “Uh…objection. Relevance.”

  Remington ignored him. He reached into his briefcase and took out a copy of Gunthum’s report on the Flor de la Mar, the one with the pressure measurements. He handed a copy to Gunthum.

  “You prepared this report, did you not?”

  “Yes.”

  “And this is your signature on the last page?”

  “Yes.”

  “According to the information in this report, later confirmed by Rockweiller Industries, you found the Flor de la Mar at a depth of six hundred and sixty-eight feet below sea level. Is that correct?”

  “Objection,” repeated Bock. But it lacked conviction.

  “Uh…six hundred and sixty-eight feet. Yes. Part of it.”

  “What part of the Flor de la Mar was not found at six hundred and sixty-eight feet?”

  “Parts we haven’t found…I don’t know.”

  “But the part that you did find—the main body of the wreck—was at a depth of six hundred and sixty-eight feet below sea level, correct?”

  “I guess.”

  “You guess? That is what you recorded, is it not?”

  “Yes.”

  “And you testified that items in the wreck were recovered by scuba divers, including David Marcum, correct?”

  “Yes.” Gunthum was twitching now.

  “And that these divers spent time on the bottom to salvage these items?”

  “Yes…that’s right.”

  Remington nodded and flipped a page in his notes. “You say that David Marcum died in a scuba diving accident while recovering the remains of the Flor de la Mar. Right?”

  “Right.”

  “And your crew testified to the same?”

  “He did. They did. Yes.”

  Remington nodded. Then he paused, dropped his notes and looked directly at Lloyd Gunthum.

  “Mr. Gunthum, are you telling me that Mr. Marcum dove to depth of six hundred and sixty-eight feet in scuba gear, on pure air, to recover the remains of the Flor de la Mar?”

  Gunthum didn’t answer.

  “Based on your testimony today, that would be virtually impossible, wouldn’t it?”

  Gunthum just sat there, frozen.

  “Would you, Mr. Gunthum, a scuba diving expert of twenty years’ experience, with master diver and technical diver certifications, and with training in the U.S. Navy SEALs, ever undertake a scuba dive at six hundred and sixty-eight feet on pure air?”

  No answer.

  “Would you even undertake such a dive at all, even with an enhanced gas mixture such as nitrox or trimix?”

  No answer. The silence was deafening.

  Remington waited for a while. But no answer was forthcoming. He asked the next question quietly, almost gently.

  “Isn’t it true, Mr. Gunthum, that David Marcum never dived to recover the treasures of the Flor de la Mar?”

  No answer.

  “Isn’t it true that, because of the depth, you used the remotely operated vehicle that was on board the Excelsior?”

  No answer.

  “Isn’t it true, Mr. Gunthum, that David Marcum never died in a scuba diving accident at all?”

  The silence was thunderous. Every eye in the room was fixed on Lloyd Gunthum. He didn’t say a word. But everyone, from Zachary Bock right down to the twenty-two-year-old paralegal in the back, knew the answer to the question.

  After a few moments, Gunthum recovered himself. He got up from his chair and ripped the microphone off his shirt. Then he glared at Bock and marched out of the room. He slammed the door behind him, shaking the glass. Everyone turned to Remington and looked at him as if he had just invented fire.

  But Remington just spoke to Bock in his usual understated manner. “It seems that your witness would like a recess. Shall we reconvene after a break?”

  The room slowly woke up, as if from a trance. People started to talk amongst themselves, and type on their computers. Some of the lawyers placed calls, probably to report back about what had happened.

  Bock spoke loudly as people left the room. “We are designating everything at this deposition as confidential and attorney’s eyes only pursuant to the protective order. The information cannot leave this room without court approval…” Everyone filed out, barely paying attention to him.

  Remington walked outside the conference room. Cindy, Harder, Ashley, and I followed him. We walked away from the crowd, and huddled in a corner. No one said anything for a minute. I felt stunned.

  “So that’s why you wanted all of those scuba records,” I said finally.

  “Yes,” said Remington. “I knew they were lying. Something in those records was bound to trip them up. And it did. It’s all in the details, Jack.”

  “What happens now?” Ashley asked. She seemed dazed. “Are you going to make him tell us what really happened?”

  “We can’t make him tell us anything,” said Remington. “But we can do one better.

  “There’s something called the crime-fraud exception to the attorney-client privilege,” he explained. “Lawyer-client convers
ations are not privileged if made with the intent of committing or covering up a crime. It’s not easy to invoke, but this is just what it was made for.

  “Gunthum is lying to cover up your brother’s death. Either Bock didn’t know, which I find hard to believe, or he knew and suborned perjury, which is worse. So tomorrow, we’re going to file a motion with the court to strip Rockweiller’s attorney-client privilege under the crime-fraud exception. We’re going to ask for unrestricted access to the death memo and all of Rockweiller’s privileged communications. And after what just happened in there, we’ll get it. And then, I hope, we’ll finally know what happened to your brother.”

  We stood for a while to let that all sink in. “Was this your plan all along?” I asked him.

  “One of them.”

  “What about the deposition?” Cindy asked. “Are you going to continue?”

  “With Gunthum? No. He’s done. I just wiped the floor with him. No way he’s coming back for another round today.”

  Sure enough, after we reconvened, Bock notified everyone that Gunthum could not continue with the deposition. He didn’t specify a reason, but everybody knew.

  All the rest of that afternoon and into the evening, Cindy, Harder, and I began drafting a motion to pierce the attorney-client privilege. Cindy did the research, Harder wrote the facts, and I wrote the legal argument. There was no bickering about who did what, and we all worked together late into the night, revising drafts, pulling case law, and trading ideas about the best way to address this or that legal point, or the best way to frame this fact. We re-convened early the next morning. After working feverishly all through that day and the one after, we filed the motion with the court.

  A new settlement offer came in soon after that. Badden & Bock had responded to our privilege brief with their customary skill, and put up a formidable opposition. It cited a wealth of case law, characterized our request as outrageous, and framed Lloyd Gunthum’s testimony as nothing out of the ordinary.

  But the settlement offer betrayed how desperate they really were. Badden & Bock was offering us eight million dollars to settle the case confidentially, today, without further disclosures. Remington said their real number was likely higher.