Posted on 09.07.2010 - 12:00 EDT in GENERAL NEWS by Rons_ROV_Links
Several additional appellate briefs and amicus briefs have been filed with the Eleventh Circuit Court of Appeals in Odyssey Marine Exploration's "Black Swan" case. The filings support Odyssey's argument that the trial court erred in dismissing the case because the recovered coins did not belong to Spain and therefore do not qualify for sovereign immunity, Spain did not have possession of the coins, and sovereign immunity only applies to vessels exclusively on a non-commercial mission.
Among the briefs were two separate filings by groups of descendants whose ancestors owned the cargo shipped aboard the Mercedes. The trial court actually missed the basis of their claims calling them "descendants of those aboard the Mercedes." The trial court, the descendants argue, also missed the fact that no vessel was found at the site and that in any event, property rights to cargo are distinct from the rights to the vessel.
An amicus brief (a filing by a "friend of the court" not a party to the case) was also filed by a congressional delegation led by Congressman Gus Bilirakis. That filing clarifies relevant legislation in the case and asserts that if the Mercedes was on a commercial mission at the time of its demise, as all evidence proves, that vessel should indeed be subject to the jurisdiction of the U.S. courts.
"We are very pleased that Congressman Bilirakis and the other members of Congress who submitted this brief understand the dangerous implications of the district court's decision here," said Melinda MacConnel, Odyssey's Vice President and General Counsel. "If any foreign vessel is allowed to escape the jurisdiction of our courts regardless of its mission or the cargo it carries, there could be grave environmental consequences and national security ramifications. It is very clear that only warships on strictly non-commercial missions are meant to enjoy sovereign immunity, and we feel confident that the Eleventh Circuit will confirm that."
Additional signatories to the brief include: Congressman Bill Young, ranking Republican Member on the House Appropriations Subcommittee on Defense, Congressman Connie Mack, Congressman Vern Buchannan, Congressman Thomas J. Rooney, and Congressman Thaddeus McCotter.
The Historical Shipwreck Salvage Political Action Committee, joined by the Institute of Marine Archaeological Conservation and Fathom Exploration, Inc., also submitted an amicus brief arguing that if the trial court's decision stands it could mean the end of archaeologically sound shipwreck recovery and conservation because salvors would have no incentive to properly document their finds or give notice to parties with potential interest. They echo the praise of Odyssey submitted by some of the descendant claimants as, "dedicated professionals who set the highest standards for maritime salvage and archaeology of deep water wrecks...Without the continuing courageous efforts of Odyssey there would be no benefit to the claimants and perhaps of greater importance no benefit to the public."
Peru has also filed an appeal of the trial court's ruling, as has a Florida doctor claiming to have historical contractual rights to any property in Florida owned by Spain. All appellants argue that because the court did not conduct a hearing on any of the issues, there was a violation of due process.
In addition, an independent analysis of the district court's decision was published in The American Society of International Law's Cultural Heritage & Arts Review providing a good summary of the status of the case and pointing out the many flaws of the court's factual findings and legal analysis. The article is available for download here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1619330
The appellate and amicus briefs are available on Odyssey's website at http://www.shipwreck.net/blackswanlegal.php
About the "Black Swan"
In May 2007, Odyssey announced the discovery of the "Black Swan," a Colonial-period site located in the Atlantic Ocean which yielded over 500,000 silver coins weighing more than 17 tons, hundreds of gold coins, worked gold, and other artifacts. Odyssey completed an extensive pre-disturbance survey of the "Black Swan" site, which included recording over 14,000 digital still images which were used to create a photomosaic of the site, which is larger than 6 football fields.
The coins and artifacts were brought into the United States with a valid export license, and imported legally pursuant to U.S. Law. Odyssey brought the artifacts under the jurisdiction of the U.S. Federal Court by filing an Admiralty arrest action. This procedure allows any legitimate claimants with an interest in the property to make a claim. For more information on the "Black Swan", visit www.shipwreck.net/blackswan.php