Odyssey Marine Exploration, Inc. has filed its Appellate Brief in the "Black Swan" case with the U.S. Court of Appeals for the Eleventh Circuit.
In the brief, Odyssey demonstrates that the district court erroneously dismissed the case by using flawed legal analysis and by failing to acknowledge or understand several major aspects of the case, including the issue of sovereign immunity.
Odyssey's brief cites the recent favorable ruling by the Eleventh Circuit for the salvor in the Aqua Log (Aqua Log, Inc. vs. State of Georgia, 594 F.3d 1330, 11th Cir. 2010) case. This ruling was made shortly after the district court ruled in the "Black Swan" case and is a beneficial clarification of sovereign immunity in support of Odyssey's position. In the Aqua Log case, the Court ruled that the sovereign must be in possession of the salvaged items in order to claim immunity from the courts in an admiralty case.
"The precedent set in the Aqua Log case is very relevant to the 'Black Swan' case and Spain's sovereign immunity claim. The Eleventh Circuit found, as we had argued to the district court in our case, that a sovereign could not claim to be immune from the jurisdiction of the court when it did not have possession of the salvaged goods. It's clear that Spain never owned the majority of the cargo here and did not have possession of them either," said Melinda MacConnel, Odyssey Vice President and General Counsel. "The district court apparently dismissed the fact that there was no vessel present at the "Black Swan" site. The concretions of coins found by Odyssey were scattered over an area bigger than six football fields, with no coherent ship's hull or structure. Even if that cargo did come from the Mercedes, it is well documented that the majority of the Mercedes' cargo was owned by private merchants who paid for its transport and the Mercedes was carrying paying passengers. Under well-established U.S. and international law, vessels on such commercial voyages do not have sovereign immunity."
The opening brief also points out several erroneous factual findings and legal conclusions made by the district court including the following:
• The district court did not conduct an evidentiary hearing on the disputed issues of fact, unquestioningly accepting testimony presented by Spain. This was a violation of due process for all of the claimants as well as Odyssey.
• The district court erred in failing to recognize that the Defendant in the case (an in rem proceeding) was NOT Spain or a vessel owned by Spain. The actual Defendant in the case was the group of coins and artifacts (the res in this case) discovered and recovered by Odyssey.
• Descendant claimants have alleged to have ownership rights to the property recovered, claiming that their ancestors placed it aboard the Mercedes (the vessel alleged by Spain to have been carrying the subject cargo) for shipment. The district court completely missed their relationship to the property referring to them as "descendants of those aboard the Mercedes," rather than the property owners.
• Despite undisputed evidence to the contrary, the district court erroneously found that the Mercedes was not engaged in commercial activity. The majority of coins aboard the Mercedes were privately owned and commercially shipped, and the gun decks of the Mercedes had been reconfigured to accommodate paying passengers and cargo. In fact, in the aftermath of the sinking of the Mercedes, Spain went on diplomatic record to protest to the British government that the Mercedes was carrying private cargo and passengers, and therefore the British attack was an unwarranted provocation. Longstanding law, as codified in the FSIA (Foreign Sovereign Immunities Act) and the SCMA (Sunken Military Craft Act) states a vessel is NOT entitled to foreign sovereign immunity if it was engaged in commercial acts.
• The district court also failed to recognize that under well-established admiralty law, cargo may be separated from a vessel, and the cargo may be subdivided to determine competing claims of ownership and salvage
"We remain confident in our case and in the legal system. I believe that the appellate court will take into account all of the factual evidence which clearly shows that the district court's dismissal of this case under the FSIA was erroneous," said Greg Stemm, Odyssey CEO. "Our legal team will remain focused on the 'Black Swan' case, while our operations team continues to work on deep-ocean search and recovery projects."
Odyssey expects that the other claimants in the case will also file briefs, and then Spain will have the opportunity to submit their response. The case is currently pending in the Eleventh Circuit Court of Appeals in Atlanta, Georgia. All of Odyssey's significant filings to date, including those made at the district court level, can be viewed at http://www.shipwreck.net/blackswanlegal.php.