Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel

Filing 131

MOTION to dismiss Amended Complaint or for summary judgment by Kingdom of Spain. (Attachments: # 1 Index of Non-Confidential Exhibits, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Exhibit A-5, # 7 Exhibit C, # 8 Exhibit D-1, # 9 Exhibit D-2, # 10 Exhibit D-3, # 11 Exhibit D-4, # 12 Exhibit D-5, # 13 Exhibit D-6, # 14 Exhibit D-7, # 15 Exhibit F, # 16 Exhibit G, # 17 Exhibit H, # 18 Exhibit I)(Goold, James)

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN ADMIRALTY ODYSSEY MARINE EXPLORATION, INC., Plaintiff, v. THE UNIDENTIFIED SHIPWRECKED VESSEL, if any, its apparel, tackle, appurtenances and cargo located within a five mile radius of the center point coordinates provided to the Court under seal, Defendant, in rem and THE KINGDOM OF SPAIN, Claimant, _______________________________________/ DECLARATION OF ADMIRAL TEODORO DE LESTE CONTRERAS, DIRECTOR GENERAL OF THE INSTITUTE OF NAVAL HISTORY AND CULTURE, THE NAVAL MUSEUM, AND THE ARCHIVES OF THE ROYAL SPANISH NAVY Case No. 8:07-CV-00614-SDM-MAP

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12 September 2008 DECLARATION OF ADMIRAL TEODORO DE LESTE CONTRERAS, ADMIRAL DIRECTOR OF THE INSTITUTE OF NAVAL HISTORY AND CULTURE, THE NAVAL MUSEUM, AND THE ARCHIVES OF THE ROYAL SPANISH NAVY

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I, Teodoro de Leste Contreras, hold the rank of Admiral in the Spanish Navy.

I am the Admiral Director of the Institute of Naval History and Culture, the Museo Naval ("Naval Museum"), and the naval archives; institutions that report directly to the Chief of Naval Operations at the Headquarters of the Navy in Madrid, Spain. The Institute of Naval History and Culture (the "Institute") and the Naval Museum are responsible for the preservation and study of historical registers and archives of the Spanish Navy. The Institute and the Naval Museum are also responsible for maintaining and protecting the historical legacy of the Spanish Navy and of the sailors and officials of the Navy who have served their country. I am a citizen of Spain. 2. This declaration is about our warship Nuestra Señora de las Mercedes ("the

Mercedes"), which sank in battle while on military service west of Cádiz, Spain, on October 5, 1804. I certify that I have personal knowledge of that which is declared in this document, and that everything is true and correct to the best of my knowledge and belief. 3. As is detailed in this declaration and in the attached documents, the Mercedes

was constructed and commissioned for the service of the Kingdom of Spain as a warship of

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the Spanish Navy. During its years of service and up until the time of its sinking in 1804, the Mercedes was in military service as a warship of the Spanish Navy, under the command of Officials of the General Corps of the Spanish Navy. 4. The underwater resting place of the Mercedes is also the gravesite of more

than 250 Spanish Navy personnel. These individuals perished in the service of their nation as a result of the explosion and sinking of the warship. In addition, the family members of an officer of the Navy died in the explosion and sinking of the Mercedes. 5. The Spanish Navy and the Kingdom of Spain have never abandoned the

warship Mercedes. The Spanish Navy and the Kingdom of Spain have not relinquished their interests in the Mercedes, its contents, or the gravesite that its remains represent. There has been no authorization for the extraction or the disturbance of the remains of the Mercedes or its contents. The Spanish Navy vehemently opposes the unauthorized disturbance and the commercial exploitation of our sunken warships, including the Mercedes. We also oppose the unauthorized extraction of objects from the place where this ship rests, as these objects are part of the remains of the ship and its contents. 6. I hereby provide a report of the Institute of Naval History and Culture with This information comes primarily from historical

information about the Mercedes.

documents and other materials that can be found in the Institute, the Naval Museum, and the General Navy Archive Álvaro de Bazán. Additional sources of information are identified in the declaration.

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I. The Mercedes: Warship of the Spanish Navy 7. The Mercedes operated at all times -- from the moment it was put at sea to its

sinking -- as a warship of the Spanish Navy. The Mercedes still appears on the lists of Navy ships. Copies of official registries of ships of the Spanish Navy where the Mercedes appears are attached as Annexes 1 and 2. The registry attached as Annex 1 is dated 1804, and the registry attached as Annex 2 is dated 1990. These registries demonstrate that the frigate Mercedes has continued to be considered as a Spanish frigate of war from the year of its sinking (1804) to the present era. 8. In the official registry of ships and officials of the Royal Spanish Navy (Annex

1), published in 1804 by the General Staff of the Navy, the Mercedes appears as one of nine warships of the frigate class assigned to the fleet of the Spanish Navy based at El Ferrol, Spain. The Mercedes is identified as a warship armed with 38 cannons. The registry of 1804 therefore confirms that the Mercedes was a warship of the Royal Spanish Navy in 1804, the year of its sinking. 9. Throughout its history of service, the Mercedes was commanded by officers

and crewed by sailors of the Royal Spanish Navy. At the time of its sinking in 1804, the Mercedes was under the command of Captain [Capitán de Navío] José Manuel Goycoa, a senior naval officer who served in the Spanish Navy for over 20 years. Annex 3 includes the official file of Captain Goycoa, who -- like the Mercedes -- was assigned to the Naval Department of El Ferrol. Captain Goycoa died during the Battle of Cape Santa María in which the Mercedes sank. As a result of Captain Goycoa's death in military service, King
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Carlos IV awarded a life pension to Captain Goycoa's widow, as is documented in the naval file attached in Annex 3. 10. During the 18th and 19th centuries, frigate class vessels were assigned to a

wide variety of military functions. Frigate-class warships were speedy warships used to conduct patrols and engage in combat operations independently or in support of fleets of larger warships. Frigates also served as military escorts and military transports as necessary to provide protection from the constant threat of attack by other countries, pirates, and privateers during this era. 11. Particularly in times of war or threatened war, as was the case in 1803-1804,

the duty of frigates of the Spanish Navy included the function of transporting objects of the military, the State, and Spanish citizens, as their safe transport required warships. This function was particularly important during the European wars of the end of the 18th century and the start of the 19th century, as voyages between Spain and its viceroyalties in the Americas required passing through areas on both sides of the Atlantic which were patrolled by warships of hostile nations. Due to the difficulties in communication that existed in that era, the risk also existed that war be declared while a ship was at sea, and that a ship would find itself subject to attack without warning. The use of warships to provide protection and safe passage to the interests and property of the Spanish monarchy and of its subjects is a military function of the Spanish Navy, which has always been at the disposal of the Kingdom of Spain. During this time period, the naval forces of other nations likewise had the function of providing security by means of the transport of property of the state and of its citizens.
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II. Brief history of the Mercedes before its last military mission 12. In this historical context, the Mercedes was at the service of the Kingdom of

Spain as a warship for fifteen years. As is documented in the attached Statement of History [Pliego de Historia], (Annex 4, pg. 4), the Mercedes was constructed in 1788 by Navy Engineers in the shipyard of the Spanish Navy in Havana, Cuba. Her first mission, in 1789, was to transport the new Viceroy of New Granada (now, Colombia, Panamá, and parts of Venezuela and Ecuador), José de Ezpeleta, from Havana to Cartagena de Indias. Attached as Annex 5 is the registry of the Mercedes upon its entry to the port of Cartagena de Indias. In this document, it is detailed that the Mercedes was under the command of Commander [Capitán de Fragata] José de Aguirre, armed with 34 cannons and other weapons (e.g., small arms, etc.), and manned by over 200 sailors. As can be learned from this document, the Mercedes was, from the beginning, always in the service of the Royal Spanish Navy and the Kingdom of Spain. 13. The diverse military missions of the Mercedes kept her active during

subsequent years. In the spring of 1790, the Mercedes made its first transatlantic voyage from Spain's viceroyalties in the Americas to mainland Spain, carrying money of the King (i.e., of the Royal Treasury of Spain) and of Spanish citizens to insure its safe transport (Annex 6). Once in European waters, the Mercedes carried out diverse military missions. At the end of 1790, for example, the Mercedes transported 200 soldiers of the Infantry Regiment of Galicia to Algeciras, along with other officials and effects (Annex 7). The Mercedes was also in combat, such as the famous Battle of the Cape of Saint Vincent against the British Navy in February of 1797. Annex 8 contains excerpts from contemporaneous documents in
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which the battle and the participation of the Mercedes are described. In 1800, the Mercedes participated in the defense of its home port of El Ferrol, Spain, from an English attack. Attached as Annex 9 is a historic document from the General Archives of the Navy, in which the naval ships that participated in the defense of El Ferrol are described. The Mercedes is among them. In these years of conflict in Europe, the Mercedes also received orders to safely transport valuable Spanish effects. In July of 1798, for example, the Mercedes -- under the command of Captain Antonio de la Torre Puebla -- transported approximately 500,000 pesos fuertes of the King and other valuables of Spanish citizens from the ports of la Guayra and Veracruz in the Spanish Viceroyalties of New Grenada and of New Spain, respectively, in the Americas to the port of Santander in mainland Spain, as is evidenced in Annex 10. In addition to the military missions mentioned above, the Mercedes participated in many others before her sinking, and operated as a warship of the Spanish Navy at all times. III. The last military mission of the Mercedes 14. After years of war in Europe, the Treaty of Amiens of 1802 brought about a

brief pause in European hostilities. However, the peace did not last long, and the war between Great Britain and Napoleonic France resumed in May of 1803. Spain tried,

unsuccessfully, to stay clear of hostilities between Great Britain and France, but it continued to be obligated to provide support to France as a result of treaties with this Power. Great Britain considered Spain's assistance to France inconsistent with Spain's non-combatant status. In October of 1803, Spain and France signed a treaty in which Spain obligated itself to pay a considerable monetary subsidy to France in exchange for not having to provide the military aid foreseen in the Treaty of San Ildefonso of 1796. Great Britain also considered
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the payment of the subsidy a cause for attack against Spain. As a result, the threat of war between Spain and Great Britain actively continued during this period. 15. Thus was the situation on September 13, 1802, when Manuel de Godoy, the

prime minister of King Carlos IV and commander of Spanish military forces at that time, wrote to the Minister of the Navy, Domingo de Grandallana, as follows (Annex 11): [S]o that it be ordered as necessary, through the Ministry in Charge of Your Excellency, on the various matters referred to in the reports and consultations that have been directed to me lately by the Commanders of the Naval Stations of Montevideo and Lima . . . . [T]here is much specie and precious produce in Lima for Spain; . . . it is desirable that Your Excellency inform the King of how much still remains to be carried, so that His Majesty may determine if some warships ought to go collect them, so that the situation of loading them unto private [ships] does not arise, as indicated by the Commander of the Naval Station. 16. In response to this letter, the Minister of the Navy issued an order on

November 6, 1802, directing the Mercedes, along with another naval frigate, to make its way to the Spanish Viceroyalty of Peru in order to safely return the moneys of the King (Annex 12): The King has resolved that two frigates be dispatched as early as possible from that port to the port of El Callao in Lima with the objective of bringing back the specie and effects of the Royal Treasury which are ready in America. According to the latest news provided by the Engineer General, the Clara and the Mercedes are ready to be armed in that Department and therefore His Majesty wants Your Excellency to provide for the preparation of said vessels as early as possible keeping in mind the voyage they have to complete, and with the knowledge that command has been given to Captain Don José Goycoa and to Commander Don Diego Aleson, whom have been advised as convenient so that they appear in that Department. God keep Your Excellency safe for many years. 17. In response to this order, the war frigates Mercedes and Clara set sail for El
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Callao on February 27, 1803 from the Spanish naval base of El Ferrol, Spain. During a storm
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in the midst of the transatlantic voyage, the Mercedes suffered damage, which required it to stop in Montevideo, where it remained for approximately one month being repaired. The Mercedes reached the port of El Callao 162 days after its departure from El Ferrol, on August 7, 1803. This fact appears in a letter written by Captain José Goycoa to the Minister of the Navy, informing him of the news of the voyage (Annex 13). 18. After the valuable materials that were to be transported safely from El Callao

to mainland Spain were placed on board, the Mercedes, along with the war frigates Clara and Asunción, began its return voyage to Spain on March 31, 1804. This fact appears in an excerpt of the logbook of Squadron Leader Tomás de Ugarte y Liaño, attached as Annex 14. 19. On the way from El Callao to Spain, the war frigates Mercedes, Clara, and

Asunción stopped in Montevideo, where they arrived on June 5, 1804. This fact appears in the letter that was sent by Squadron Leader Ugarte y Liaño to the Minister of the Navy on June 8, 1804, attached in Annex 15. As is also stated in this letter, in Montevideo, the military squadron that the Mercedes was a part of was placed under the command of Royal Navy Commander General José de Bustamente y Guerra, Knight of the Military Order of Santiago. Upon leaving Montevideo, the squadron consisted of four Spanish Navy war frigates: Mercedes, Clara, Medea, and Fama. One day before setting sail from Montevideo, the now second in command of the squadron, Tomás de Ugarte y Liaño, fell ill and had to be replaced. Squadron Leader Bustamente replaced Ugarte with Captain [Capitán de Navío] Diego de Alvear, who returned to Spain with his family after many years of service to the Crown in the Viceroyalty of Río de la Plata (modern-day Argentina, Bolivia, Uruguay, and Paraguay). Captain Alvear, who was originally on the Mercedes with his family, therefore
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switched over to the Medea. His wife, four daughters, three sons, one nephew, and a large portion of his personal effects stayed on board the Mercedes. (See Annex 16, pp. 104-105.) 20. After being notified by the Viceroy of Río de la Plata that it could depart, the

squadron of the war frigates Mercedes, Clara, Medea, and Fama set sail from Montevideo to Cádiz on August 9, 1804. As noted in the official general registry of the Mercedes prepared upon entry at the port of Montevideo in June 1804 and attached to the letter of Squadron Leader Tomás de Ugarte y Liaño (Annex 15), the officers of the Mercedes were: Captain [Capitán de Navío] José Manuel Goycoa Lieutenant [Teniente de Navío] Miguel de Yriarte Lieutenant [Teniente de Fragata] Bernardino Erguía Lieutenant Junior Grade ("JG") [Alférez de Navío] Pedro Landázuri Lieutenant JG [Alférez de Navío] Manuel Altuna Graduate Lieutenant JG [Alférez de Navío Graduado] and First Pilot Juan García Ensign [Alférez de Fragata] Ángel Ballester Ensign [Alférez de Fragata] Luis Abello After the squadron entered Montevideo, Lieutenant Pedro Afán was transferred from the war frigate Fama to the war frigate Mercedes, apparently replacing Lieutenant Miguel de Yriarte. Thus, Naval Lieutenant Pedro Afán was on the Mercedes during the voyage from Montevideo to Cádiz, Spain. The other frigates in the squadron were similarly under the command of Navy officers and operated by a crew of Navy sailors and troops. 21. The official registry of the Mercedes upon entry to Montevideo also identifies

the crew as follows: Midshipmen: - Juan Novoa - Toribio Salcedo Aventurero: - Manuel Vargas
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Major Officials: - Accountant Ignacio de la Corcova - Master of Silver Vicente Murrieta - Priests Jacinto Rivera and Pedro Pardo - Second Pilot Ramón Villarino - Third Pilots Isidro Caycova and José de Castro - First Surgeon Gaspar Botest - Second Surgeon Jerónimo Agustino Sailors and Troops: Marines.............................................63 Artillery Troops ...................................18 Guard officers and divers..........................8 Carpenters..........................................3 Caulkers .............................................4 Sail Masters .........................................2 Gunsmiths ...........................................2 Boat skippers, outlet technician, and cook.....4 Lead Gunners.......................................9 Ordinary Gunners...................................42 Sailors...............................................51 Sailors-in-training................................103 Cabin boys...........................................7 Provisions dispensers... ...........................3 The total of officers and other ranks on the Mercedes was therefore approximately 337 when it set sail from Montevideo to Cádiz on August 9, 1804. 22. Like every war frigate of the Royal Spanish Navy in that time period, the

Mercedes was armed with a specific number of cannons of various types, in accordance with Navy regulations. At this time, Spanish Navy regulations required that Spanish war frigates be armed with 26 12-pounder cannons; 4 6-pounder cannons; 8 24-pounder obuses or pedreros; and 12 3-pounder obuses or pedreros. The artillery of the Mercedes before leaving Montevideo met these regulations, as demonstrated in the official registry attached to the
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pounder) refer to the weight of the cannon shot or shell. A pedrero is a short-barrel antipersonnel weapon that principally used stone projectiles. 23. After setting sail from Montevideo and crossing the Atlantic, on the morning

of October 5, 1804, the Spanish squadron was approximately one day of navigation away from its destination of Cádiz, when a squadron of four Royal British Navy ships under the command of Commodore Graham Moore intercepted it. As the Second Squadron Leader Alvear narrates in his diary (Annex 16, pp. 388-393), having seen the British frigates on the distant horizon, the frigate Clara made a signal to the others. Once the Spanish squadron identified the British ships as warships, combat formation was ordered as a precaution. As had been ordered they do in these circumstances before leaving port, the Fama assumed position at the head of the line, the Medea and the Mercedes at the center, and the Clara at the back. The British commander sent an officer to the Medea, where the British officer informed Spanish officers that the King of Great Britain had ordered that the English squadron detain the Spanish squadron and take it to England. Squadron Leader Bustamente valiantly refused the British order, as can be seen from his contemporary account of the incident (Annex 17). (Annex 17, pp. 4-5): I cannot . . . explain to Y[our] E[xcellency] without amazement the surprise that caused to all, [when] this [British] official told me, upon coming on board that `although war was not declared, and having reconnoitered and let various other Spanish vessels pass freely, his Commodore had specific orders of H[is] B[ritish] M[ajesty] to detain the division under my command, and to escort it to the Ports of Great Britain, even if for such purpose he had to employ the superior forces with which he found himself, that [such forces] had been entrusted to him with no other purpose, three weeks prior, entering into a hardfought battle.'
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Squadron Leader Bustamante described the encounter as follows

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A compromise of this sort led me to invoke my officialdom, and informed of the matter, and the R[oyal] Orders with which I found myself, regarding my destination, which could not change; and of having to defend with honor, if attacked, the Arms of H[is] M[ajesty]; . . . . [T]he English official . . . exited to the quarterdeck, made some signal to his ships with a white handkerchief, and telling the interpreter that he would return for a response or decision by the council of war, he left on his boat. Soon after the British officer disembarked, one of the British warships fired a shot, thereby starting the battle. (See also Annex 16, pp. 389-390.) 24. Minutes after the start of the battle, the Mercedes suffered a catastrophic

explosion. A copy of a painting of the battle and of the explosion of the Mercedes, which is part of the National Maritime Museum's collection in Greenwich, England, is attached as Annex 18. The Second Squadron Leader Alvear described the explosion of the Mercedes as follows: "The Mercedes jumped through the air making a horrible racket, covering us [on the Medea] with a thick rain of debris and smoke . . . ." (Annex 16, p. 390.) 25. In the explosion and sinking of the Mercedes, all but approximately 50 sailors

on board died. The Second Squadron Leader Alvear recounts this tragedy in his diary as follows (Annex 16, p. 392): [After the battle, it was] one of everyone's main concerns that the boats diligently go to the remains . . . of the Mercedes in case they could save some people, something they accomplished with incredible speed, . . . and they succeeded in picking up some fifty members of the crew, including Second Commander and Naval Lieutenant D. Pedro Afán, whom they found on the logs and rests of the hull which were still intact, the others having died, including the family of the Major who writes this Diary, made up of his wife doña María Josefa Balbastro, four girls, Manuela, Zacarías, María Josefa, and Juliana, and three boys, Ildefonso, Francisco Solano and Francisco de Borja, who were the seven children that were with their mother, not one of them older than seventeen years of age: with another nephew who accompanied her, ISTERIO D. Isidro Gálvez, Second Lieutenant of the militia of Buenos Aires, a clerk, MINDEFENSA DE
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Attorney of the Royal Council, D. Antonio Gil Taboada, and five servant slaves, the father and four underage sons . . . . The Lieutenant of the Mercedes, Pedro Afán, describes the ordeal that he suffered after the explosion of the Mercedes in the following manner: [The Mercedes] had the unhappy misfortune of being blown up by the British Frigate Amphion, during the action of October 5 [1804] upon the Cape of Santa Maria, of the Officers, and crew, of which only [myself], of the [Officers], and some forty-eight men, of the [crew], had the Fortune of miraculously saving themselves, [myself] having been below water with parts of the artillery of the hull, (post that I covered) and other fragments on top of [me], the space of which I cannot identify, and afterwards grasping a piece of the prow, [I] sustained [my]self on it for two and one quarter hours, until with the battle over, they picked [me] up, having suffered extraordinarily, and consequently becoming crippled with part of [my] left foot missing, the loss of the right arm by the collarbone, with a continued affliction of the chest, and in general [my] whole body upset . . . . The account of Second in Command Afán is attached as Annex 19. 26. After the tragic destruction and sinking of the Mercedes, the remaining

warships in the Spanish squadron were captured and forcibly brought by the British fleet to Plymouth, England (the Medea and the Clara) and to Portsmouth, England (the Fama). The frigates Medea, Clara and Fama, and their contents, were confiscated by Great Britain. IV. The consequences of the British attack and the resulting sinking of the Mercedes 27. The Battle of the Cape of Santa María and the sinking of the Mercedes was an

important event in Spanish and European history of the early 19th century. As a result of the unprovoked British attack on the Spanish squadron, King Carlos IV of Spain declared war on Great Britain in December 1804. In his declaration of war, which is attached as Annex 20, the King of Spain condemned: the abominable surprise attack, combat, and capture of the four Spanish ISTERIO frigates, which, while navigating with the full safety that peace inspires, were MINDEFENSA DE
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maliciously attacked, by orders that had been signed by the British government at the same time that it deceitfully demanded conditions for the prolongation of peace, in which it was given all the confidences possible, and in which its own ships were provided with supplies and refreshments in the ports of Spain. The King took special note of "the sad loss of the frigate Mercedes with all its cargo, crew, and great number of distinguished passengers, which have disappeared as innocent victims of a detestable policy." Consequently, it was declared as follows: Inspired by these feelings, the magnanimous heart of the King, after having exhausted all the resources compatible with the dignity of his crown to preserve peace, has reached the weighty decision of going to war with the King of Great Britain, his subjects and peoples, omitting the stylistic formalities of a solemn declaration and publication, since the English Cabinet has commenced and continues to make war without declaring it. 28. Thus Spain entered into the Napoleonic Wars fighting against Great Britain as

an ally of France. Consequently, almost one year after the sinking of the Mercedes the Spanish Navy fleet fought together with the French fleet in the famous Battle of Trafalgar of 1805. In this battle, the British Navy defeated the French and Spanish Navies, thereby assuring British dominion of the seas. Later, in 1808, French troops occupied Spanish territory under the pretext of a joint campaign against Portugal. This disguised invasion incited Spain's War of Independence during which battles between the Spaniards, the French, and the British were carried out on Spanish soil for several years. In summary, the sinking of the Mercedes marked a decisive moment in Spanish history. The remains of the ship, therefore, are an important part of Spain's historical patrimony.

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V. The place from which Odyssey extracted the objects, and the observed and extracted objects at this site correspond to the location of the remains of the Mercedes 29. Based on information that the Institute and the Naval Museum has received

about the actions of Odyssey Marine Exploration, Inc. ("Odyssey") in waters west of Cádiz and south of Portugal, as well as information about the objects that Odyssey extracted from and observed on the bottom of the ocean, we conclude that the shipwreck in this case is the shipwreck of the Mercedes. 30. The Confidential Declaration attached as Exhibit B provides information about

the place where the Mercedes sank. As can be seen from the analysis in the confidential Addendum, this place matches the exact location where Odyssey conducted its operations. 31. The fact that the shipwreck at issue in this case corresponds to the Spanish

Navy Frigate Mercedes is also demonstrated by cannons and other distinctive artifacts on the shipwreck site which match cannons of the Spanish Navy and artifacts in the custody of the Navy and/or documented in the historical records of the Navy. 32. For example, as documented in the general registry of the Mercedes attached

within Annex 15, the artillery of the Mercedes included 3-pounder obuses, known colloquially as pedreros. Attached as Annex 21 is a copy of the 1784 official design for 3pounder pedreros of the Spanish Navy, a specification that was in effect when the Mercedes was built and equipped. Attached as Annex 22 are photographs of a pedrero of this

specification, which is in the collection of the Naval Museum in Madrid. Attached as Annex 23 is a photograph of a pedrero taken by Odyssey at the shipwreck site. Unlike larger iron cannons, the pedrero is made of bronze and therefore has not accumulated rust or concretions
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23, the cannon photographed by Odyssey on the seabed is a Spanish Navy pedrero of the 1784 specification; twelve of which were on board the Mercedes when it sank in 1804 (see General Registry in Annex 15). Attached as Annex 24 are photographs of other bronze pedreros at the shipwreck site. Although the base of one of the cannons in the photograph has been damaged, the photographs show that these cannons are of the 1784 Navy specification. The presence of Spanish-regulation cannons that were part of the artillery of warships of the Spanish Navy -- and specifically of the Mercedes when it was attacked and sank in 1804 -- in the place where Odyssey extracted the artifacts confirms that the shipwreck is that of the Mercedes. 33. Artifacts photographed by Odyssey which correspond to parts of war frigates

of the time period when the Mercedes sank further confirm the identity of the shipwreck as that of the Mercedes. Attached as Annex 25 is a photograph of a bronze pintle in the collection of the Naval Museum of San Fernado, Cádiz, Spain. The pintle in the photograph is a distinctive bronze object that was mounted on the rudder of naval vessels at the time of the Mercedes. The pintle has a projecting protrusion to fit into the gudgeon mounted on the stern of the ship. Attached as Annex 26 is a photograph taken by Odyssey of a bronze pintle at the shipwreck site. It can be seen that the two pintles are made out of bronze and are of the same distinctive design, including the presence of four pins that passed through the wood of the rudder. Attached as Annex 27 are photographs of portions of the hull and rudder of a Spanish Navy frigate of the time of the Mercedes which is on display near the site of the Carraca naval dockyard close to Cádiz, Spain. The placement and function of the pintle can be discerned from these photographs.
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34.

Annex 27 also shows the plates of copper that the Spanish Navy used at the

time of the Mercedes to protect the wood of the hulls of its warships from deterioration. Attached as Annex 28 are photographs of the shipwreck site taken by Odyssey showing examples of the remains of copper sheathing. At the time of its sinking, the hull of the Mercedes was sheathed with copper plates such as the ones on the shipwreck site. 35. In addition, the shipwreck site contains samples of the type of large clay

bottles -- called aceituneras or olive jars -- used by Spanish Navy sailors on board Spanish warships at the time of the Mercedes. Olive jars were used to store water and other liquids to sustain the crew on Spanish warships. Attached as Annex 29 is a photograph of a Spanish olive jar at the shipwreck site. Also attached within Annex 29 is a photograph of a similar olive jar that is in the collection of the Naval Museum in Madrid. 36. Historical cargo registries, such as the one attached as Annex 30, establish that

the Mercedes had more than 900,000 pesos in silver, 5,809 pesos in gold, copper and tin ingots, two unused bronze cannons, and other materials on board when it sank on October 5, 1804. The objects Odyssey photographed and extracted from the shipwreck site coincide very closely with the materials that were on board of the Mercedes. 37. For example, the official registry of the Mercedes upon entry at the port of

Montevideo in June 1804 (Annex 15) specifically identifies the unused bronze cannons placed on the Mercedes at El Callao as culebrinas, known in English as culverins. Culverins were bronze cannons used by the armed forces of Spain from the 15th to the early 18th Centuries. Attached as Annex 31 are photographs taken by Odyssey of a partially buried culverin at the shipwreck site. The bronze composition of the weapon, the distinctive handles
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in the form of dolphins, and the design of the muzzle can be seen from the photograph. Annex 32 contains photographs of culverins on display at the Naval Museum and at the Museo del Ejército [Army Museum] in Madrid. The distinctive features of culverins can be gleaned from these pictures, such as the dolphin handles and the elongated barrel of the weapon. These photographs confirm that the cannon at the shipwreck site is a culverin, which, as historical documents demonstrate, formed part of the cargo of the Mercedes when it sank. 38. Moreover, the shipwreck site contains large quantities of copper and tin ingots,

which can be observed from the photographs Odyssey took of the site. Historical cargo registries, such as the one attached as Annex 30, establish that the Mercedes was carrying large quantities of copper and tin ingots for "His Majesty" ["de cuenta de S.M. [Su Majestad]"] when it sank. 39. The coins Odyssey took from the site also confirm the identity of the

shipwreck as that of the Mercedes. According to the "Artifact Summary" prepared by Odyssey and attached as Annex 33, the coins extracted from the site range from the late 18th Century to exactly 1804, the year in which the Mercedes departed from the Viceroyalties of Perú and Río de la Plata and later sank en route to mainland Spain. The coins are also identified as being of Spanish nationality and as having been minted in Spain's viceroyalties in South American. 40. For these reasons and for the reasons provided in my Confidential Declaration

(Exhibit B), it is clear that the shipwreck at issue in this case is the warship Mercedes and that the objects extracted by Odyssey are part of the remains of this frigate of the Spanish Navy.
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MINISTERIO DE DEFENSA ARMADA

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VI. Conclusion 41. The Mercedes operated as a Royal Spanish Navy warship until its sinking and

has never been abandoned by Spain. The disturbance of its remains is, therefore, strictly forbidden. As was made public by Spain in an official declaration of the Spanish Embassy published through the U.S. Department of State in the Federal Register of the United States on February 5, 2004: The Embassy of Spain presents its compliments to the Department of State and has the honor to address the matter of Spanish laws and policy regarding the remains of sunken vessels that were lost while in the service of the Kingdom of Spain and/or were transporting property of the Kingdom of Spain. In accordance with Spanish and international law, Spain has not abandoned or otherwise relinquished its ownership or other interests with respect to such vessels and/or its contents, except by specific action pertaining to particular vessels or property taken by Royal Decree or Act of Parliament in accordance with Spanish law. Many such vessels also are the resting place of military and/or civilian casualties. The Embassy of Spain accordingly wishes to give notice that salve or other disturbance of sunken vessels or their contents in which Spain has much interests is not authorized and may not be conducted without express consent by an authorized representative of the Kingdom of Spain." Source: Embassy of Spain, Washington, DC, Note No. 128, December 19, 2002. 42. I certify that there has been no Royal Decree or Act of Parliament renouncing

or abandoning the property rights or other interests of the Kingdom of Spain in the warship Mercedes and its cargo. I also certify that authorization or consent has not been given to Odyssey to carr