A British treasure hunter who raised £32million of silver from an Indian Ocean shipwreck torpedoed by the Japanese has been told he cannot claim salvage rights.
Motorsports champ and financier Ross Hyett, 70, successfully spearheaded a complex and risky treasure hunting mission to recover 2,364 bars of silver from the wreck of the SS Tilawa in 2017.
The 10,000-ton steamer, built in Tyneside, was torpedoed by a Japanese submarine off the coast of the Maldives in November 1942.
Mr Hyett, from Derby, a former executive director of the British Racing Drivers’ Club, having spent over two years planning and carrying out the salvage operation, successfully got his treasure hoard back to Southampton in 2017 and declared it to the Receiver of Wreck, which oversees salvage law.
But the South African government, the owner of the long-lost silver bars, sued Mr Hyett’s company Argentum Exploration Ltd over the hoard, claiming it was state property and must be handed over.
After a back-and-forth legal battle, the Supreme Court ruled on Wednesday that South Africa had ‘sovereign immunity’ from Mr Hyett’s claim for salvage rights, the Times reports.
Ross Hyett, 70, successfully led a treasure hunting mission to recover 2,364 bars of silver from the wreck of the SS Tilawa
The SS Tilawa, a merchant steamer sunk in 1942 by Japanese torpedoes while carrying a £32m cargo of silver bars
The silver that was onboard the SS Tilawa on its way from what is now Mumbai, India, to a mint in South Africa, where it was due to be turned into coins.
Because of this, Lord Llyod-Jones and Lord Hamblen ruled that the silver was not meant for ‘commercial use’ as outlined in the 1978 State Immunity Act, according to the Times.
The court said it had also been informed about a deal made between Mr Hyett’s company and the Republic of South Africa (RSA) last month, but provided no further details on the exact agreement.
A solicitor at the law firm HFW which advised the South African government, Jonathan Goulding, said that the ruling had an impact on treasure hunters since it demonstrates that ‘finders are not always keepers’.
He told the Times: ‘In light of this ruling, anyone hoping to recover valuable lost cargo and bring it to the UK to claim ownership of it will first need to take steps to identify the original owner and make contractual agreements with them to salvage cargo before attempting to do so.’
Lawyers for the Republic of South Africa (RSA) previously claimed that state immunity meant they were under no obligation to pay Argentum Exploration a massive ‘salvage reward’ under the 1995 Merchant Shipping Act to get them to release the silver.
In December 2020, Judge Sir Nigel Teare in the Admiralty Court in London found that RSA was obliged to pay up, after comparing the dispute to the board game Buccaneer, in which rivals race to claim pirate treasure.
Then in 2021 RSA won permission to take their fight to the Court of Appeal, but their appeal was dismissed.
The case had turned on delicate legal arguments over whether the silver was in commercial or sovereign use as it lay at the bottom of the sea 75 years after the ship carrying it was sunk.
If it was deemed to be in use for a sovereign purpose it would grant the RSA state immunity from paying a reward to the treasure hunters.
Appeal judge Lord Justice Popplewell ruled in 2022 that whilst the silver on board had been largely destined for the sovereign purpose of being turned into coins in the South African national mint, it was legally in ‘commercial use’ as it had been bought and sold and was being carried on a merchant ship when it was lost.
That purpose had not changed during the decades it had lain at the bottom of the sea the judge found.
The SS Tilawa was a merchant ship owned by the British India Steam Navigation Company, having been built on the Tyne in 1924.
She was 125m in length and at the time she was sunk carried a crew of 222, as well as 732 passengers and 6,472 tons of cargo.
That cargo included 2,391 bars of silver, purchased by the South African government and destined to be turned into
But en route from Bombay to Durban, the ship was sunk by two Japanese torpedoes.
Nearby British ship HMS Birmingham swiftly mounted a rescue operation and a total of 673 of the 954 people on board were brought back to Bombay on 27 November 1942, with 281 losing their lives.
HMS Birmingham the warship that came to the rescue of the SS Tilawa after it was hit by torpedoes
Passengers and crew attempting to flee the SS Tilawa, a merchant steamer sunk in 1942 by Japanese torpedoes
Of the 2,391 silver bars on board, 2,364 were salvaged and brought back to Southampton over 70 years later by Mr Hyett’s treasure hunting company, Argentum Exploration Ltd.
The secret operation took six months and the bars shipped to Southampton. It has since been held under lock and key in a secure warehouse whilst Mr Hyett’s company and the South African government fought in court over the rights to the treasure.
The South African government (RSA) is the legal owner of the hoard, but Argentum Exploration is not obliged to release the silver until South Africa has agreed to pay him a massive ‘salvage reward’ under the 1995 Merchant Shipping Act.
The South African government had insisted that it could legally avoid paying the reward for the silver under the State Immunity Act 1978.
The Act frees other sovereign states from being subject to UK laws, except in certain very limited circumstances.
Sir Nigel ruled in December 2021 that the bars were being used for commercial purposes when the ship was sunk in 1942, and handed victory to Mr Hyett’s company.
Agreeing with that ruling, Lord Justice Popplewell said in October 2022 that the commercial purpose and use of the ship and the treasure could not be said to have changed during the 70-plus years it had lain on the sea bed.
‘What exposes a state cargo owner to salvage in such cases…is the commercial use of a vessel to carry the cargo, which exposes it to the risk of having to pay salvage if it is saved from danger to the cargo owner’s advantage,’ he said.
‘The silver had in all probability been forgotten about by RSA, which did not actively consider what to do with it until after 13 October 2017.
‘That activity is non-sovereign and does not attract immunity under customary international law.
‘The maritime circumstances which comprise that ingredient were no different when the salvage commenced in 2017 from those which existed at the moment in 1942 when the vessel and silver went to the seabed.
‘No distinction is to be made between the moment when the vessel suffered the casualty and the moment when the silver became derelict by abandonment of hope of recovery by RSA, which it is to be inferred took place shortly after the sinking in 1942.
‘Wreck as a recognised subject matter of a claim for salvage depends upon the maritime circumstances which preceded it becoming derelict.
‘Moreover, the mere passage of time between cargo becoming derelict and the commencement of salvage services does not affect whether it is a recognised subject of salvage. It makes no difference whether it was salved within hours of becoming wreck or after 75 years.
‘Accordingly, the use and intended use of the vessel and silver which it is necessary to examine are those at the time the vessel sank in 1942, when the silver was a cargo.
‘The silver was a cargo in maritime circumstances then because it was being carried on the vessel. That is what makes the silver a recognised subject of salvage for the purposes of the maritime law claim.
‘I agree with the judge that the silver was in use by RSA for commercial purposes when it was on board the vessel. Both aspects were non-sovereign activity under customary international law, and both were activity for commercial purposes.
‘For these reasons I would dismiss the appeal,’ he concluded in 2022.
Lady Justice Andrews agreed with Lord Justice Popplewell’s conclusion.
However, Lady Justice Elisabeth Laing disagreed and delivered a dissenting judgement, leaving the door open for the challenge being taken to the Supreme Court, which the RSA did.