| |
| | |
Q & A following Spain's Motion to Dismiss on September 22, 2008
|
Spain's Motion to Dismiss on September 22, 2008
What does Spain's filing of September 22 mean for the "Black Swan" case?
Spain filed a motion to dismiss or in the alternative for summary judgment in the "Black Swan" admiralty case pending in U.S. Federal Court, based upon Spain's belief that under the Foreign Sovereign Immunities Act ("FSIA"), the U.S. Court lacks jurisdiction over the matter.
Odyssey now has until November 17 to respond to Spain's filing.
What is Odyssey's opinion of Spain's legal position?
This filing was expected based upon Spain's previous assertions that the U.S. Court does not have jurisdiction in the "Black Swan" case. Magistrate Pizzo requested that Spain file a motion justifying its position in the matter. Spain argues that the FSIA applies to defeat jurisdiction in this case.
Upon our initial review of the 36-page motion and its attachments of over 850 pages, it appears that the legal arguments presented have missed some of the most important factors in the case, including the fact that the ship that Spain asserts was the source of the coins was loaded with commercial cargo and that the cargo primarily belonged to merchants - facts that we believe would prevent a claim of sovereign immunity.
In addition, for the court to entertain Spain's argument, logic would dictate that it would have to accept jurisdiction to review the evidence.
In any case, we believe that the court has jurisdiction over the "Black Swan" coins that have been recovered by Odyssey, all of which were legally and properly brought before the court for adjudication.
What does FSIA mean, and who can claim sovereign immunity?
FSIA is short for Foreign Sovereign Immunities Act. Sections 1602 - 1611 of Title 28 of the United States Code provide for immunity from litigation in U.S. federal courts to foreign sovereign nations in certain circumstances. The statute also outlines a number of exceptions to foreign sovereign immunity, such as in the case of maritime liens in admiralty arrests.
Under the FSIA, the ultimate burden of persuasion for sovereign immunity remains with the alleged foreign sovereign, and this burden must be met by a preponderance of the evidence. Also, case law has determined that principles of sovereign immunity will not bar federal court jurisdiction in admiralty matters where the sovereign makes a claim to property in an in rem action, but the sovereign is not in actual possession of the res (as in this case with the cargo recovered).
Does the U.S. Court have jurisdiction over the case, or only over the coins?
Odyssey believes the U.S. Court has jurisdiction over the entire case, as well as jurisdiction over the coins and artifacts properly and legally brought before it.
What's the next step for Odyssey?
Odyssey has until November 17 to file its response to Spain's motion.
We hope that we will have a decision from Magistrate Pizzo shortly after we present our side of the case to the court. Despite Spain's effort to cast aspersions on what it disingenuously refers to as Odyssey's "covert" activities, the fact remains that we voluntarily brought these artifacts before the U.S. Federal Court because we believe that this court provides the best possibility for a fair adjudication of the rights of Odyssey as the finder and salvor, as well as the rights of potential claimants. For Spain to argue that this court should not have jurisdiction, without even a suggestion of an alternative venue for deciding claims, is baffling. Spain seems to be saying that no one but Spain should have any rights, no matter what any other claimant's interest may be.
The argument that this court does not have jurisdiction is a dangerous one which would undoubtedly encourage plundering and piracy rather than proper archaeological recovery, salvage and legal adjudication of rights in cases such as this. It would send the message that "if you find a shipwreck, don't bring it into court."
Odyssey will continue to pursue an amicable arrangement before the court with any claimant, including Spain or any other nation that may have a cultural or historical interest in the artifacts from this site. We believe that any state or individual who may have an historical or cultural tie should be involved in the educational and cultural aspects of a project like this.
How long does Judge Pizzo have to decide on this motion filed by Spain and Odyssey's response, once submitted?
There is no deadline for the judge to make his decision.
Spain says it has proof that the ship is definitely the Mercedes and definitely a warship. Do you now agree?
While our working hypothesis is that the ship associated with the cargo found at the "Black Swan" site may be the Mercedes, we feel that there is still not enough evidence to conclusively determine that the Mercedes is the ship associated with the "Black Swan" site. Although the Mercedes was listed as a naval ship, her voyage was clearly commercial in nature, and research indicates that at the time she sank, she was engaged in the commercial activity of delivering merchant cargo and passengers on behalf of the Spanish Maritime Cargo Service. This is a crucial fact casually dismissed in passing in Spain's filing.
Spain requested an extension of time and additional length for its motion to attempt to prove what Spain claims is self-evident, namely that the site is definitely the shipwreck of the Nuestra Señora de las Mercedes, even though the identification is based on circumstantial evidence, including the general location and Spain's analysis of a statistically insignificant sample of approximately 600 coins, which were the only artifacts that could be used to provide specific dates for the site.
The archaeologist who submitted a Declaration for Spain made some significant errors in his evaluation, which is understandable since he did not see the site first hand, as our archaeologists did. Everything presented is still circumstantial evidence, and would be true of many colonial shipwrecks from the same period, so we are still cautious about making a positive identification of the site, which will be up to the Judge.
Spain's filing appears to casually dismiss the most important factor in determining whether the Mercedes would be sovereign immune, and that is whether that ship was on an exclusively non-commercial mission. It is puzzling that even reporters have been able to find this publicly accessible archival information relating to the ownership of the commercial cargo and freight and publish it, but it is barely mentioned in Spain's filing.
According to the Law of the Sea Convention, to which Spain is a signatory, sovereign immunity can only be claimed on ships that were in exclusively "non-commercial" service. If the site is proven to be associated with the Mercedes, Odyssey's research, and the research of independent experts, has revealed that the Mercedes was carrying a substantial cargo of privately owned merchant goods, which we believe will defeat any claim that the vessel - let alone its cargo - should enjoy sovereign immunity.
In fact, Odyssey would be pleased if the site were indeed confirmed to be associated with the Mercedes, but we believe further research and examination of the site would be prudent before making that final determination.
What is the significance of distinguishing between a military and a commercial mission?
Under international law, warships and other vessels or aircraft owned or operated by a country and used on exclusively non-commercial missions may enjoy sovereign immunity after sinking, wherever they are located. Vessels which were not on exclusively non-commercial missions would not have sovereign immunity.
In the case of the "Black Swan," we believe that no actual vessel has been found to which sovereign immunity could be attached. Even if it were proven that the cargo recovered came from the Mercedes, our research shows that even though the Mercedes was listed as a naval ship, her voyage was clearly commercial in nature and at the time she sank, she was engaged in the commercial activity of delivering merchant cargo and passengers on behalf of the Spanish Maritime Cargo Service. This is a crucial fact casually dismissed in passing in Spain's filing.
How much cargo did the Mercedes carry and who did it belong to?
Research proves that approximately 75% of the cargo aboard the Mercedes was owned by merchants who had paid a substantial fee for shipping their coins. The manifests list every merchant, the amount of coins they shipped, the value, and even the freight charges they paid. Spain's filing completely fails to identify any legal basis for its asserted ownership of this private property, and yet Spain requests the court to transfer custody of all the artifacts in this case to Spain. It is hard to believe that Spain's legal strategy would include an attempt to lay claim to the privately owned cargo without even considering the rights of any other claimants, including heirs of the original owners, a number of whom may yet submit claims.
Recently, one of Spain's most respected daily newspapers, El Pais, independently verified this research.
What about the photos Spain submitted to the court to "prove" that the site is the Mercedes when Odyssey characterized the site as being distinctive due to the absence of a vessel?
Spain was provided access to thousands of digital still photographs and hundreds of hours of video tape that covered the entire site from which the coins were recovered. The photos submitted by Spain's counsel to submit in the report were obviously strategically and disingenuously selected to support Spain's assertion that a vessel exists at the site and the vessel is the Mercedes. However, even these specifically selected photos do not show anything beyond debris on the seabed. If there had been any actual images of sections of a hull, these obviously would have been shown by Spain in its report.
We believe that Spain's interpretation of what it has seen is inaccurate and based on some false assumptions, including the belief that the hull's structural remains lie below the sediment, which, based on our observations at the site, is not possible. We will answer in court with our own interpretation, which will - of course - be public.
We believe that our interpretation of the site will naturally be more accurate since our archaeologists were physically at the site. We stand by our position that there is no apparent ship hull or structure at the site, and that the nature of the other pieces scattered around the site is subject to interpretation, whereas Spain's archaeologists are obviously choosing to interpret what they see to support their case to the extent possible.
No one has seen more deep-ocean shipwrecks than we have, and it is clear to our experts that what we have here is a field of scattered cargo and other non-cohesive bits and pieces from a ship, but the ballast pile, piles of olive jars, hull structure, timbers, and the keel of a shipwreck that would be expected of a ship have not been found at this site.
We believe that nothing at the site that could reasonably be characterized as a ship's hull or other ship architecture that would have been disturbed by Odyssey's archaeologically sound recovery of the coins in this case. The coins recovered from the "Black Swan" site were fully exposed and strewn across the ocean floor over more than 20,000 square yards (= approx. 17,000 sq. meters) in the open ocean.
Are the Spanish allegations true that Odyssey carried out the "Black Swan" recovery in secret after expressly being told in a 2006 meeting not to work on the site?
Absolutely not. It is hard to argue that we carried out the project in secret when we invited the Spanish Ministry of Culture to send along a representative. It is important to remember that at the time of the referenced meeting on November 13, 2006, the Ministry of Culture - represented by Ms. Elisa de Cabo - was cooperating with Odyssey to organize two Spanish archaeologists to accompany us on our Sussex project, so we were working on a friendly and cooperative basis with the Ministry of Culture at the time.
Ms. De Cabo's Declaration filed in support of Spain's Motion to Dismiss is therefore not merely a general misrepresentation of the nature and substance of that meeting, it also contains blatantly false assertions.
In fact, there were three representatives of Odyssey present at the meeting with Ms. de Cabo, and we have detailed notes from the meeting which prove that Spain's account of the meeting is misrepresented. It was, in fact, a very friendly and cooperative meeting, and we left expecting a response from Spain regarding the appointment of an archaeologist to accompany us. If the Ministry of Culture had actually sought to notify us that we should not touch any specific vessels, its representatives certainly would have informed us officially, and this never happened.
Odyssey followed all proper legal and archaeological protocols in this case. Claims to the contrary are false and inflammatory.
A Spanish newspaper just published an article quoting the Declaration of one of Odyssey's Spanish researchers who apparently advised Odyssey not to pursue the "Black Swan" project - can you explain the relationship?
We use many different researchers and research resources on a continual basis who often come up with different information on the same subject. We gather all of the information from all sources and evaluate the information in its entirety. This researcher never suggested that we avoid pursuing any shipwreck, and she provided us with extensive research on many Spanish shipwrecks, some of which were warships that would have likely been subject to sovereign immunity and many that we believe would not.
This particular researcher also did research for us on many other ships that sank in the area in which the "Black Swan" was discovered. Shortly after the "Black Swan" was made public, she was questioned by the Spanish Guardia Civil and then decided to discontinue providing research assistance to Odyssey.
Does Spain have any claim at all?
If it can be proven that the "Black Swan" site is that of the Mercedes, Spain has every right to make a claim for the portion of the cargo that it believes is Spain's, but to deny the rights of other claimants - which could include the descendants of those who paid to have their goods shipped - as well as claims by other nations that might have a legal claim, has no basis in law and seems unreasonable and illogical.
At the same time, we continue to express our willingness to arrive at an amicable arrangement before the court with any claimant, including Spain or any other nation that may have a cultural or historical interest in the artifacts from this site. We believe that any state or individual who may have an historical or cultural tie should be involved in the archaeological, educational, and cultural aspects of a project like this.
What is Odyssey's position with respect to claimants who may come forward?
As we have made clear, Odyssey welcomes any parties who may have legitimate claims to come forward and file their proof of ownership for the court to consider - with this or with any other shipwreck that we discover. Odyssey even sought to publish the names of the original merchants who shipped goods in order to aid potential claimants. Spain objected to Odyssey's publication of those names.
Who is considered a legitimate party to file a claim? How does a legitimate claimant file a claim? How long do claimants have to file their claim?
Odyssey has filed all required notices, and in order to move this case toward resolution, the parties have agreed that a deadline for claims is appropriate, although the court has not yet set such a deadline. Any valid and verifiable claims may be presented to the court through a legal pleading filed with the United States District Court for the Middle District of Florida, Tampa Division, case number 8:07-CV-00614-SDM-MAP.
Assuming there is a ruling that Odyssey gets a salvage award - what does that mean for the claimants?
Typically, under international law, undersea discoveries benefit the finders by awarding them substantial salvage awards based upon several factors, including the risk, expense, and expertise required to locate and recover the treasure, as well as the value of the recovery.
The nature of a salvage award is not dependent upon the number of claimants. Claimants other than the salvor must either enter into an agreement among themselves to split the owners' percentage of a find or submit their individual claims to the court for adjudication. For instance, in the case of the Central America, an award of 92% of the cargo was made to the salvor, and the remaining 8% was held in trust while various insurance companies were given the opportunity to present their respective claims.
Is Odyssey still willing to arrive at an amicable agreement with Spain?
Odyssey has always maintained its willingness to come to an amicable agreement with Spain as well as any nation or other party that may have a cultural or historical interest in the artifacts from this site.
Is the "Black Swan" site a war grave, as Spain asserted?
Absolutely not, despite Spain's attempt to create the false impression that the site is a "gravesite," Spanish representatives are fully aware that no human remains have been discovered at the site, and there is no hull structure or sedimentary overburden present that could hold human remains.
The Odyssey team is made up of many sailors and ex-servicemen, and we deeply respect the final resting place of any sailors or passengers who may have perished in a shipwreck. It is Odyssey's policy to treat all sites with respect and proper archaeological protocols, and we have carefully observed these protocols in the case of the "Black Swan" site.
What does Peru's recent filing mean?
Peru has filed a Verified Conditional Claim in the "Black Swan" admiralty case, seeking access to discovery and information. We have enjoyed an amicable relationship with Peru, and its representatives have expressed a willingness to work with us in the "Black Swan" case to share information and to protect any cultural interest Peru may have.
Is the "Black Swan" case different from the Juno and La Galga case?
Yes, they are significantly different. In Sea Hunt, the case involving the Juno and La Galga, the determination of the case rested upon the court's interpretation of the Abandoned Shipwreck Act. That law will not apply in this case because the "Black Swan" was not found in U.S. territorial waters.
###
This Q & A was last updated September 26, 2008
NOTE: Due to ongoing developments in the "Black Swan" case, this FAQ may be updated from time to time.
For more information, please contact Natja Igney, Manager of Corporate Communications, at nigney@shipwreck.net
Odyssey Marine Exploration believes the information set forth in this document may include "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933 and Section 21E of the Securities Act of 1934. Certain factors that could cause results to differ materially from those projected in the forward-looking statements are set forth in "Risk Factors" in Part I, Item 1A of the Company's Annual Report on Form 10-K for the year ended December 31, 2007, which has been filed with the Securities and Exchange Commission.
| |