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)

ANNEX 8 TO EXHIBIT A (De Leste Declaration)

126 Description of the principal events that occurred on the battle, which on day 14 of February, around the Cape of St. Vicente, the rear back of my squadron sustained, against the entire enemy [squadron] of 19, or 18 battleships [Navíos]. From the instant that, being secure in Algeciras the Boats of Force, I left for the ocean with the squadron under my command, I had winds coming from E. by NE towards the SE, which took me in less than 8 days, close to the Cape of St. Vincent, both because their violent nature did not allow me to force them, as for the necessity of [illegible] convoy [illegible] in a bad state, and very little expedition. The night of the 13th of this month, the wind blew from the SE by S at gale force, but the appearance of the weather being mistaken, I did not consider it opportune to set course until the morning of the 14[th], that blowing from the west I ordered [illegible] E by SE. At 8 two cannon shots were heard from the stern. The [. . .]

148 The Trinidad ending up absolutely like a buoy, and having neither flags, nor [bow] lights, nor where to [illegible], I called upon Lieutenant General Don Juan Juaquin Moreno[] to put the signal to form and re-establish the battle lines, walling to larboard, in case the enemies charged back before being rescued. With regard to the battleship [Navío] Trinidad, I gave my orders for a jury mast to be put in place, the main mast having been chopped up which could not support itself[,] having been hit by gunfire as it was, and escorted by the Frigate Mercedes, to take advantage of the opportunity given by the wind and night to take route towards Cadiz, berthing as much as they could to shore, which was made possible by the wind, and the fact that night fell upon the enemies; I, as well as my Major General agreed to this course in the resolve of returning to [. . .]

217 of the windward squadron, learned the intention and our intact ships, and with time beared away with the captured. The sun was going to set, when the Pelayo, was the first one that passed to our prow, its commander yelling for us to lower that flag which was going to be hit, something that it later verified when it fired toward the last English ship that was letting itself go with the wind [arribado] as the rest. We lowered that flag, which merely remained raised over 6 minutes, in which time it was not easy for the enemy to see, and was confirmed by the firing that they continued to make until they saw the movement of the squadron; It barely became dark when Don Jose de Cordoba decided to stop the Frigate Diana, verifying this with all his aides an hour and a half after sunset, upon coming on board he ordered this Commander to free the King's Battleship as he best could upon trying, since he

218 had determined to fight the enemy until death or victory. This battleship [navío] immediately put itself at stern, and with the little favorable wind, we began to move away from the Squadrons with the luck of losing sight of them in 4 hours; our general ordered the Frigates Perla and Mercedes to escort us but from the heights he could only verify from this sad night that it was more than that which they name Hernan Cortes, they started the miracles [prodigios] of the Trinidad. Imagine my friend all of us in the Commander's chamber, each one projecting according to his character, the most secure way of reentering Cadiz, and of freeing the Battleship [Navío] from being captured by the enemy. [. . .]

Spanish Original

ANNEX 9 TO EXHIBIT A (De Leste Declaration)

Registry stating the number of individuals of all classes of the Navy and Army who contributed to the defense of the department of El Ferrol the days of August 25 and 26 of 1800 which the English invaded it . . . .
Total of individuals Number of accounts

Number of individuals that were in the action

Idem that were in other destinations

Branches of the Navy

[.

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[. .

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Quantities that the Army satisfied by [illegible] payments to those who are worthy of the same

Idem who are worthy of the same and will be owed them

Idem to whom correspond illegible

Illegible Discount extracted and portion that satisfies the navy

Quantity of illegible

Battleship [Navío] Real Carlos San Hermenegildo Argonauta San Agustin Monarca Frigate Mercedes Asuncion Paz Clara [. . .] [. . .] [. . .] [. . .] [. .

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Army
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[. . .]

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Dock of Ferrol April 30, 1805, Is a copy, D. Benigno Regueino

No. 4

Frigate Mercedes
Account of the individuals of the Crew and Garrison of this Vessel designated and anchored in the inlet of Carranza the night of the 26th of August with mention of the different locations in which they were employed to beat and defeat the enemy in the days of the attack.

Officers of the Sea
[List]

[.

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Spanish Original

ANNEX 10 TO EXHIBIT A (De Leste Declaration)

REGISTRY STATING THAT . . . enters to THIS PORT of Santander TODAY . . . the Frigate of H[is ]M[ajesty] carrying 38 Cannons, named N[uestra ]S[eñora ]de la Mercedes commanded by the Captain of Frigates of the Royal Navy Don Antonio de la Torre Puebla.

[Description of Ship, Crew, and Armaments]

I. [. . .] II. [. . .] III. It transports of H[is ]M[ajesty] five-hundred thousand pesos fuertes in 129 chests in bars and 20 in Coin, and 102 Pouches of Grain of Commerce. Port of Santander 26 July 1798. Antonio de la Torre Puebla

Most Excellent Sir, [illegible] on 2 August 1798 Between twelve and one yesterday the Frigate of H[is ]M[ajesty] named the Mercedes anchored in this Port coming from the one of Veracruz wherefrom it departed last June 1[5] under the command of the Captain of the same class Don Antonio de Torre Puebla[,] whom[,] of course[,] passed on the corresponding official notes so that the five-hundred thousand pesos in Bars and Money for His Majesty and eighty-eight Pouches of Grain, and fourteen of indigo plant for particulars which have been transported from those domains could be unloaded with the greatest promptness; [. . .]

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Although its course was directed to taking the Port of Ferrol, or La Coruña, it had to alter [this course] due to having seen over the Cape of [illegible] a Battleship [Navío], and a Frigate of War which from their ma-

neuvers indicated being enemies, and with this reason and taking advantage of the opportunity of nightfall it changed its course and managed to arrive to this Port with all happiness. [. . .]

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May God keep Y[our ] E[xcellency] m[any] y[ears] Santander 27 July of 1798. [Most] E[xcellent ]S[ir] [illegible signature]

[Most] E[xcellent ]S[ir] Don Juan de Langara

Spanish Original

ANNEX 11 TO EXHIBIT A (De Leste Declaration)

Most Excellent Sir:

Extract to give timely notice and so that vessel may be dispatched in the proper season. Notice given and as a result the frigates Clara and Mercedes were dispatched to Lima for specie.

Dear sir, so 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, I forward to Your Excellency three letters numbered 38, 44 and 45 of the 1st and 369, 70, 72 and 73 of the 2nd, which documents Your Excellency

shall return to me after they are no longer being used, letting me know of any decisions they may have led to.

From letter # 369, one can see that there is much specie and precious produce in Lima for Spain; and even though I dispatched the frigate Santa Rufina in February THE PRINCE OF PEACE of this year for however much she can bring back, it is desirable that Your Excellency inform the King of how much still Sir Don Domingo de Grandallana 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. God keep Your Excellency safe for many years. Barcelona, September 13, 1802.

Spanish Original

ANNEX 12 TO EXHIBIT A (De Leste Declaration)

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 [Capitán de Navío] Don José Goycoa and to Captain [Capitán de Fragata] Don Diego Aleson, whom have been advised as convenient so that they appear in that Department. God keep Your Excellency safe for many years. Barcelona 6 November 1802.
Dom[ingo] de Grandallana [Minister of the Navy]

Sir D[on] Felix de Texada [Captain General of the Naval Department of El Ferrol]

Spanish Original

ANNEX 13 TO EXHIBIT A (De Leste Declaration)

N. 393

Most Excellent Sir
EXPEDITIONS TO THE INDIES 1803 Dossier 33 doc. 144

Announces that the Frigate Mercedes arrived in Callao after 162 days of leaving Ferrol with a month's stop in Montevideo to repair damage of bowsprit.

The Frigate Mercedes anchored in Callao after 162 days of its leaving Ferrol, as stated in the Register that I attach to Y[our ]E[xcellency], with a stop of one month in Montevideo to repair the irremediable damage to the cockpit of the bowsprit which it suffered running into a strong storm by the [illegible] at latitude 41° 22' S. and western Longitude of Cádiz of 92° as I mentioned to Y[our ]E[xcellency] in N°391, occurring after being separated from its companion Clara, in the terms announced in N°340 without any more news other than short damage to the rigging and with its whole crew robust. After unloading the Quicksilver and Paper that it transported on behalf of the Royal Treasury, repairs will proceed as appropriate. I give notice to Y[our ]E[xcellency] for the governance and knowledge of H[is ]M[ajesty]. God Keep Y[our ]E[xcellency] [many years]. Lima 9 August 1803. Most Excellent Sir [illegible] of the Commander General Josef Goycoa

[illegible] Don Domingo Grandallana

Spanish Original

ANNEX 14 TO EXHIBIT A (De Leste Declaration)

Note On the day of March 31, 1804 three frigates of His Majesty, Mercedes, Asuncion and Clara set sail from El Callao of Lima, under the command of Squadron Leader D. Tomas Ugarte who was on board of the first [one] [. . .] [Logbook coordinates and notes]

Spanish Original

ANNEX 15 TO EXHIBIT A (De Leste Declaration)

8 June 1804 Don Tomas de Ugarte y Liaño, Squadron Leader and Commander of a Division of three Frigates, Mercedes, Clara and Asunción. Gives notice of his arrival in Montevideo from El Callao, and remains at the orders of [the officer] of equal rank Don José de Bustamente y Guerra.

No. 379

Most Excellent Sir

Gives notice of his happy arrival to Montevideo after 66 days of navigation from El Callao and of the division of Lima remaining under orders of Squadron Leader Don Josef Bustamante.

P [illegible]

On the night of the 5th of the current month, I anchored in this Port with the Division under my command after 66 days of navigation from El Callao, without any particular occurrence during the voyage, or on the 3 vessels as expressed in their attached registries; and in compliance with the Royal resolution of last July 31 which the Squadron Leader Don Josef de Bustamente y Guerra communicated to me, these vessels[,] which H[is ]M[ajesty] nobly decided to entrust in me in another sovereign decision of the same date[,] from today onward remain under [Bustamante's] orders, which I notify to Y[our ]E[xcellency] for the knowledge of H[is ]M[ajesty]. May Our Lord keep Y[our ]E[xcellency] many years. Frigate Mercedes in Montevideo 8 June 1804.

Most Excellent Sir

Tomás de Ugarte y Liaño

Most Excellent Sir Don Domingo Grandallana

General Registry of the Frigate of the King Nuestra Señora de las Mercedes armed with 38 cannons which enters today to the Port of Montevideo Under the command of Captain [Capitán de Navío] Don Josef de Goycoa in convoy with the Frigates Asunción and Clara
Midshipmen
Juan Noboa

Rank and Names of Officers of War
Accountant Master of Silver Priests 2d Pilot
Ramón Villarino Isidro Caycova José de Castro Gaspar Botest Jerónimo Agustino Jacinto Rivera Pedro Pardo Vicente Murrieta Ignacio de la Corcova Miguel de Yrirarte Toribio Salcedo Aventurero Manuel Vargas Pedro Landázuri Bernardino Erquía

Classes and Names of Major Officers

Artillery and Munitions

Small arms and artifacts

Lieutenant

General Commander of the Division & Squadron Leader [...] Lieutenant 3rd Id. 1st Surgeon 2d Id.
Manuel Altuna

[] Tomas de Ugarte y Liaño

Lieutenant

Cannons of 12.....................26 Id. of 6...............................4 Obuses of 24........................8 Id. of 3..............................12 Cannonballs of 12..............1040 [...]

Pounds of led bullets........362 [...] Rifles...........................34 Bayononetes...................34 Pistols...........................68 Swords..........................68 [...]

Miguel de Sierra

Lieutenant Junior Grade ("JG")

Secretary of the Lieutenant

Pedro Mosti

Id.

Joaquin Villalba Juan García Ángel Ballester Luis Abello

Assistant Lieutenant Lieutenant Junior Grade

Pedro Navarrete

First Pilot and Graduate Lieutenant JG

Ensign

Marines 4
1. 1st Master

Id. of Artillery 2 42 51

Carpenters

Caulkers

Sail Masters

Gunsmiths

Ordinary Gunners

Sailors

Cabin boys 7

Provision dispensers 3

Total 319

Dimensions and [illegible] in Feet and Inches of [illegible] [...]

63

18

Id. Guard officers & divers 8 Boat Lead skippers, Gunners [...] 2 4 9 Spare from Regulation

3

Sailorsintraining 103 43

1. 1st Commander 2. 2d [illegible] 1. 2d [illegible] 2. 2d Id.

Absent from Regulation
1. Lamplighter 1.

13

4

4

[illegible]

Inspection [illegible]

[illegible] of Engineer [...]

[...]

3400 Ordinary rations for 104 days in accordance with 345 positions. [...]

Notes

1a. [...]

2d. It transports on account of H[is ]M[ajesty] 221,000 pesos, 20 boxes of husk, 20 [illegible] of Vicuña wool, 1132 Quintiles of Tin, 961 of Copper and two discarded bronze culverins. On account of particulars 587,000 [pesos in] coin and 3000 in worked silver and in soldiers' pay 142000[,] which in total make up 953,000 pesos.

3a. One of the marine troops died during navigation.

On board the aforementioned Frigate anchored at the Port of Montevideo on 5 June 1804. Josef Goycoa

Spanish Original