Sometimes complex litigation can mask a powerful human drama. The case of Argentum Exploration against South Africa is just such a tale. Behind arcane argument in the UK courts about whether SA had to pay salvage costs to Argentum for raising lost treasure from sea-bed depths of almost three kilometres, there lies a forgotten story. Involving a war-time tragedy with hundreds of lives lost and a huge treasure torpedoed to the bottom of the deepest ocean, it’s a tale as dramatic and heart-breaking as the sinking of the Titanic.
Read judgment
ONE of the terrible but virtually forgotten tragedies of World War II played out during a moonlit night in November 1942. The SS Tilawa, en route from Mumbai via Mombasa to Durban, was hit by two Japanese torpedoes, about 900 kilometres north of Seychelles. Hundreds of people drowned and the ship and its cargo sank about two and a half kms to the bottom of the sea.
Some 650 passengers who survived on life boats, rafts, even on pieces of floating plank, until help arrived, were taken back to India. But because of war-time censorship, and because those affected by the tragedy were largely poor labourers from colonial-era India, without political and social clout, their story has largely gone untold.
There the wreck has lain for many decades, believed to be inaccessible. But as techniques developed to allow the recovery of wrecks even at that great depth, the Tilawa and her story finally began to arouse outside interest.
Treasure secretly lifted
First, there was SA: the ship had been carrying 2364 silver bars, sold by the Indian government to the government of what was then the Union of South Africa. Now worth more than USD$43m, the bullion had been bought by SA for minting as coins. If, even more than 80 years later, they could be lifted from the sea bed, then SA was obviously going to be interested.
Then there was Argentum Exploration, a UK company that believed it could recover the silver. After a long search, the wreck was located. Then Argentum secretly retrieved the ingots and took them to the UK where they were declared to the local authorities. Initially, Argentum claimed ownership, but when it became clear that SA had a prior claim, Argentum wanted at least to recoup its salvage costs from Pretoria.
But another salvage operator had also been drawn in. This was Odyssey, a company that had been in negotiations with SA about raising the Tilawa treasure, and neither SA nor Odyssey had been aware of the Argentum project.
Apex court’s enviable speed
Once it became clear that SA claimed ownership, that the silver wasn’t going to be simply handed over, and that SA wasn’t about to pay the salvage costs, Argentum launched litigation in the UK courts
For maritime lawyers it has all been riveting. Some of the issues were raised and tested for the first time since changes to the law. It was initially brought in the high court, then the outcome in that court was challenged on appeal, and finally – the outcome was clearly important enough to warrant all this expense – the matter went to the supreme court, where judgment was delivered last week.
Observers from SA , despondent about the rate of judgments delivered by the highest court in that country will surely feel some envy – even awe perhaps – that the decision of the UK’s apex court was finalised with such commendable speed. Argument was heard at the very end of November 2023, and judgment was handed down on 8 May. That’s just slightly over five months later, in a matter that was both novel and highly complex – an example that SA’s constitutional court appears unable to follow these days.
No contract? – then no payment can be enforced
In their decision, the five judges of the UK supreme court overturned the earlier appeal court decision, and found that SA did not have to pay Argentum its costs for retrieving the silver.
At first sight this might appear unfair – after all, the company must have incurred considerable expense – but, in interpreting the law, the supreme court judges stressed that Argentum’s claim against SA was not based on any contract that the company had concluded with the SA government.
Further, although this had no impact on the outcome of the case, the judgment pointed out that the parties (SA and Argentum) had reached a settlement a couple of weeks before the decision was handed down. The terms of the deal have not been made public but, the court noted, ‘The parties have agreed that we should nevertheless hand down the judgment and we are satisfied that it is appropriate to do so.’
The judgment is now being closely studied by maritime lawyers because it deals with issues raised for the first time under changed legislation. But, simply put, the most important implication for companies like Argentum is that if they want to salvage lost treasure and then collect salvage costs from the owners, they must first conclude a contract with the owners.
That sounds a sensible principle and one that will ensure that owners aren’t suddenly taken by surprise, as happened in this case.
Families of passengers want access to Argentum’s research
But while the litigation may now have been finalised, the judgment is far from the end of the story for the Tilawa families, both those whose relatives were lost at sea and those who managed to survive.
Two organisations, working closely together, have been set up to ensure that the tragedy is never forgotten and to investigate many unanswered questions. They have been waiting for the litigation process to be completed. While the families had no view about a preferred outcome to the dispute between SA and Argentum, they are very keen to access the research material used by the salvage company. Emile Solanki, founder of the S S Tilawa Foundation, says they had heard that research photographs showed lifeboats still attached to the ship. Now they want to see this evidence for themselves, he said.
Two commemoration events of the tragedy have already taken place, one in the UK and the other in Mumbai, and Solanki said that a further event was planned for Durban, the Tilawa’s intended end destination.
New bride, whole families, among passengers
During these commemorations, some survivors, children at the time of the tragedy, told their stories, while family members of others explained how their lives had been affected. A few passengers on the Tilawa had been working in SA or in Kenya and were going back there after a holiday at home in India. Most though, were going to those countries for the first time to take up work.
One worker, unable to travel back to India himself, had married, at long-distance. The new bride, with her uncle as chaperone, were passengers travelling to Africa where she was to meet her husband for the first time. Some of the passengers were whole families, crossing the sea to find a new future.
The many affecting stories recorded at these events included one of a child who survived, along with his mother. After they were taken back to Mumbai by the rescue vessels, the mother and child went back to their home village, only to arrive during their own funeral ceremony: while the local people had heard of the Tilawa’s sinking, the letter home to say that they had been rescued had not reached the village, and so no-one had known of their great good fortune.
Tragedy ‘blanked’ out by war-time censorship
There is a clear sense that those involved and many others, believe the tragedy has not been given the prominence it merits. At the UK commemoration event, an Indian retired vice-admiral, I C Rao, said that war-time censorship had been so strict that the news of the sinking had been ‘blanked’ from the media. Very few people were aware of it. Even in the maritime industry almost no one had heard of it, but this ought to change, he said.
An elderly man commented, ‘So much is made of the Titanic. But what about the Tilawa? Are we Indians less human that we are not to be remembered? Our parents who died in the cold sea that night were human beings with feelings. We hope for more notice of this event from the UK government.’
Protect these funds from corrupt looting
But while efforts to gather more information and arrange memorial events continues, perhaps it’s also time to consider what South Africa intends to do with the unexpected windfall of the retrieved treasure.
The terms of the settlement between the government and Argentum still hasn’t been made public, so no one yet knows what Pretoria has agreed to pay for the salvage operation and the total amount that will be transferred to SA’s national coffers.
It’s important that the government plays open cards on what it intends doing with the bullion, and what it has paid Argentum by way of settlement. It’s just as important that the public keeps a close watch on this issue, demanding to know the terms of the Argentum deal and the process to be followed in repatriating the funds.
SA is a happy hunting ground for corrupt officials intent on looting state coffers and this windfall will surely tempt such thieves to try their luck. Against this background, is critical that nothing is lost to fraud, that these funds should be properly accounted for and that they should be wisely used.