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 16 TO EXHIBIT A (De Leste Declaration)

HISTORY
of

D. DIEGO DE ALVEAR Y PONCE DE LEÓN
BRIGADIER OF THE NAVY
the services he provided, the merits he acquired

AND THE WORKS HE WROTE
EVERYTHING SUFFICIENTLY DOCUMENTED
BY HIS DAUGHTER

DOÑA SABINA DE ALVEAR Y WARD

MADRID -- 1891
PRINTING PRESS OF D. LUIS AGUADO

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[.

.

.]

IX RETURN OF DON DIEGO DE ALVEAR TO EUROPE, AND NAVAL COMBAT OF THE CAPE OF SAINT MARY, OCTOBER 5, 1804.

Around

that time, a division of four frigates was

awaited which[,] coming from Lima (Peru) with specie, was supposed to be backed up with two more anchored in Montevideo, to, all together and in convoy, navigate to Europe; two of them, due to navigational breakdowns upon rounding Cape Horn, or at the will of the Viceroy, ultimately stayed in those seas, with only the four remaining having been redied, i.e., the Medea, the Fama, the Mercedes and the Clara, under the command of Squadron Leader D. Jose Bustamente y Guerra; and having already received the order for his return, Alvear embarked with all his family to be transported on the Mercedes; but he had to disembark later, since D. Tomas Ugarte, Squadron Leader, second Commander and General Major of the division, with whom [Alvear] was connected by close ties of friendship, had become gravely ill and died shortly [thereafter]; and advised by

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[Bustamante], and although [Alvear was] strongly inconvenienced (due to the opposition [Alvear] showed to being separated from his family) [Bustamante] ultimately asked Alvear, in accordance with the rules of the Naval Ordinance, to substitute the mentioned Leader in the General Staff and second hand of the division, as was his right by being the Officer of highest rank; and having been so appointed, on August 6th, three days before setting sail, and presented to the whole division [as Leader], [Alvear] had to transfer to the Medea, which flew the insignia of the General; taking with him only one of his sons, D. Carlos, then a young boy of fourteen years, cadet of the dragons of Buenos Aires, and who later on was, as we have said, the brilliant and celebrated General who gave such great services to his fatherland the Republic of Argentina; who, lively and mischievous, adapted with difficulty to staying quiet in the narrow room where he stayed with his various siblings and his mother, and upon the reiterated requests of this woman his father finally had to take him along; such small motives are sometimes the causes of great consequences, since, due to this fortunate transfer, father and son owed their lucky escape from a tremendous catastrophe that, a few days later, brought the rest of the family to an end, sealing its name in History with such very painful celebrity. On August 9, 1804 the four frigates set sail from the port of Montevideo toward Cadiz. The navigation was happy, although they had many sick of fevers, especially in the Medea, occasioned by the many squalls that fell after crossing la Linea and the heat waves that there were; the people suffering even more for being almost all new, drafted, and having to endure, in all possible days, all the cannon, rifle and other exercises necessary for their proper instruction. General D. Jose Bustamente also had been suffering from a grave and painful illness almost all the time. [. . .]

APPENDIX NUM. 6

DIARY OF NAVIGATION of the division of the four frigates "Medea", "Fama", "Mercedes" and "Clara", UNDER THE COMMAND OF ROYAL NAVY
SQUADRON LEADER, MR. D. JOSE BUSTAMENTE Y GUERRA, KNIGHT OF THE MILITARY ORDER OF SANTIAGO, by the Major General of the same

division, Royal Navy Captain [Capitán de navío], D. Diego de Alvear y Ponce de León.
"FROM THE PORT OF MONTEVIDEO TO THAT OF CÁDIZ, YEAR OF 1804, DAY OF THE MOON 2

Day
[. .

4 of October. - The weather continued to be clear

and calm [during] the whole day's navigation, the wind very cool from N.N.E. to N., the sea flat or hardly noticeable from the N.N.W., and we navigated wall to port with good sail, conserving the already reestablished union, after the recognition of the ketch at sunset. .]

On the fifth day, the Mercedes gave signal of another Danish ketch that also came from Liorna to go to London, according to

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what it told us by voice, having prepared us for it, [. . .] that our neutrality continued without change. [. . .]

The Clara at this time gave the signal of three sails to the first quadrant, which at eight were found to be four [sails], which were heading toward us; and their being warships revealed, signal 246 to prepare for battle was given, and successively signal 127 to form such a line, from wall to port; a natural order that was executed quickly, with the Fama staying at the head of the line or at the forefront, the Medea and Mercedes in the center, and the Clara at the rearguard, as was ordered since our departure from the port in the corresponding notice board. We continued in this layout with all our gear toward the E.N.E., already in view of the whole coast of the Cape of Saint Mary, since at around Montefijo was demarcated at N.E. 5°E., at which time, with the other vessels close, recognized as being English war frigates by their flag and their large size, we flew our emblem and flag at the stern, and each one of [the English frigates] placed itself crossways with ours respectively, as they were arriving windward. The one across us, which was the main and biggest one of all, asked us in English for the port of our departure and of our destination, and we responded to him in the same language that from America to Cadiz; then it stayed back a little, for having loaded its main top gallant, it fired a cannon shot, perhaps to affirm its flag or to make us wait for it and to ask us more questions, as we did [. . .]; it marked its own [sails], and the main [top gallant], coming closer to us, [they] told us that they were going to send their boat with an Official. Meanwhile the signal to reduce the distances was given, and immediately the 310 of port, which repeated the call

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to clear the ship and prepare for combat; and although afterwards Assistant D. Francisco Zabalburu doubted whether the top banner had been added, as should have been done to call the attention of those at port, as was the intention of the General: in case this distinctive sign had been missing, according to what those of the other frigates could say, this signal would have been reduced to the 310 of the generals of the sail, denoting danger, which, not having been [present] during the course, should have been interpreted as enemies; in which case, far from being detrimental, the referred to mistake was a very opportune coincidence that indicated how critical our circumstances were. The boat arrived at [our] side around nine; and the English Official having ascended, he said to the General in a few words through an interpreter, on behalf of his Commodore, "he was under orders of H[is ]B[ritish ]M[ajesty] to detain this division and bring it to England, even if it meant the expense of a hard-fought battle, the sole object for which he had come with those four frigates of great power, well-equipped and manned, three weeks earlier, to relieve another divison that had been here with the same commission...; and that thus, war not being declared between the two Nations, nor having orders to take prisoners, nor to detain any other vessels, it seemed to his Commodore that we should avoid bloodshed and fulfill the stated resolution of his Sovereign, it being a decided match and which could not be done without, etcetera. Our General, who, without the need for an interpreter, had understood that statement quite well, and had even told the Englishman in his own language whether we could enter another port in Spain other than Cadiz, where [. . .] they blocked various French vessels, to which [the Englishman] responded evasively, and already with a certain haste and restlessness, saying that they were calling him from his frigate, he ordered that all officers meet briefly, which given such an extraordinary case, and instructed by the General himself about the relevant orders, that H[is ]M[ajesty] (q.D.q.) was talking, of

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having to sustain with honor, in case of an attack, the glory of his arms, [our General] wondered whether some truce could be taken [to] examin[e] the matter and [to] send[] an official on board the Commodore['s vessel]. At this point, the Englishman, who had gone to the quarterdeck, made a signal to his vessels with a white handkerchief; and telling the interpreter that he would return for the decision of the Council or Board of War, he withdrew to his boat. All of us determined in the meantime for the most glorious match of battle rather than to go to ports other than those of [Spain], as the King ordered and the honor of his flag demanded, each of us took our place, awaiting the results, it seeming incredible they would give effect to the way in which in fact they had threatened us. But having the boat just arrived to its frigate, [the frigate] fired a cannon shot at us, which serving as a signal to the others, each one of them fired its own, the one next to the Mercedes being the first, which gave her a close discharge of musketry and artillery; and all in our division responding with a promptness and opportunity that could not be held off in such circumstances, general fire was opened at that moment. This may have been at around nine and a quarter, or a little later, and after a half hour of well-sustained firing from one side and the other, the Lord of victories desired to award to our enemy a decisive advantage that they had not been able to acquire up until then with their great superiority of forces, afflicting us with one of the most unfortunate and tremendous incidents. The Mercedes jumped through the air making a horrible racket, covering us with a thick rain of debris and smoke; and the frigate that beat her turning to us without losing an instant, all of our resources and means of defense were quickly depleted between the two. The Fama, which later anticipated our sad situation and its inevitable consequences, started forcing its sails, and no one could disapprove of its conduct; and the Medea, placed between the fire of two frigates, the two most powerful, with 24-pound artillery and 42-pound carronades, [. . .] dismasted or with her two main masts and mizzenmast crossed through; the dry

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yard cut to pieces; the main port cables, various shrouds and backstays missing [. . .] all of its sails smashed or riddled with bullets; and in one word, entirely dismantled and without steer, and what is more, all of its people disheartened and full of consternation due to the recent and unhappy incident of the Mercedes; not a few injured and even dead and excluded [from battle] many more, and over fourty convalescents in the infirmary and the gundeck finally abandoned, about which the Officers who commanded them had complained repeatedly. The Medea, I say, was not strangely in the dire necessity of lowering its flag, as our General ordered, in common agreement, at around ten thirty, heard one by one the vote of all of the Officers, Commander and Major, which did not differ: without forgetting in the midst of this conflict that, all of our forces exhausted, one neither could, nor would it be a good idea to, continue delaying that act, not only because the main windward frigate, which we knew quite well and which was a downgraded battleship [navío] that in other times had beaten another French battleship [navío] of 80 cannons and forced it to run aground, was coming closer to us with a profound silence and highly probable harmful intention of deciding the matter by coming aboard, whereupon to prevent things from arriving uselessly to such an extreme of tenacity war not having been declared, as had been assured to us and thereby place in worse condition the right of H[is ]M[ajesty] to these frigates and funds and specie they transport, since [the frigates] would only go to the ports of Great Britain detained, and in no way as prizes as was announced to us, being the only issue that [we had] contested with arms and lost on our part, etc. The Clara, nevertheless, continued to fight about another quarter of an hour, until, wearied by the others, it was forced to surrender. Then the one on our leeward side also launched a hunt of the Fama, which continued to fight while in retreat with her respective [enemy frigate], and already a long distance away, with course for Cadiz or the the Strait:

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having all three lost sight of each other around three in the afternoon, still hearing the last cannon shots, etc. At around eleven o'clock in the morning, or soon after, the English came aboard with some troops and sailors to take charge of the government and composition of the frigate, which had remained, as was mentioned, very dismantled, and they did the same on the Clara, transferring the majority of its crews, troops and staff Officers on board of their own [ships], with a few other providences or precautions not foreign to the situation; but all in all with the greatest courtesy and attention, without touching our luggage, nor our arms, nor treating us like prisoners of war, and above all permitting our General and Major to stay with some other Officers, Chaplains, surgeouns and assistants whom they pleased. It being one of everyone's main concerns that the boats diligently go to the remains that were left of the Mercedes in case they could save some people, something they accomplished with incredible speed, and one of the frigates also came closer, and they succeeded in picking up some fifty members of the crew, including Second Commander and 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, D. Isidro Gálvez, Second Lieutenant of the militia of Buenos Aires, a clerk, Attorney of the Royal Council, D. Antonio Gil Taboada, and five servant slaves, the father and four underage sons, not taking away him who describes such an unhappy disaster [Alvear] with no more sons but Carlos Antonio, Cadet of dragons, guidon bearer of [Buenos Aires], who accompanied him [Alvear] in the Medea with the corresponding licenses; having also lost

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his oldest son Benito, of the age of eighteen, in the service to H[is ]M[ajesty] on October 10, 1800, in the plague of Cadiz, when he had hardly begun the military career of his father, in the Corps of Royal Midshipmen of that main Department of the Royal Navy. The English division was made up of the following forces, as we informed ourselves and saw with our own eyes: Crew Obuses. Carronades. Frigates Captains Cannons. Infatigable Caiptain 330 26 124 1216 42Moore, p o u n d e r s pounders p o u n d e r s Chief Lively. . .. Idem 280 28 184 918 32Hammond p o u n d e r s pounders p o u n d e r s ... Anfión... . Idem 250 26 182 98 32Lutton . . . p o u n d e r s pounders p o u n d e r s ... Medusa... Idem 250 26 184 912 32Gore . . . pounders pounders p o u n d e r s The English who came to sail this frigate were fiftyeight, under the command of the first Lieutenant of the Infatigable, Mr. Gore, with three Midshipmen, two Pilots and ten soldiers, with their respective Commander, Lieutenant Carlos Flul, and we should not omit that, after they came on board, they raised the English flag above the Spanish one, which did not cease to surprise us, this action not being very consistent with the mere detention of the frigates with which we had been assured and which was the only point of contention; but for now the rebuke did not make itself opportune. They also collected the rifles and sables from the chamber, and with them they armed their sailors during the night, this precaution having taken place due to fourty men of our crew who they left on board, with some Officers in charge and a boatswain to help them, e