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 17 TO EXHIBIT A (De Leste Declaration)

20 October 1804

Don Jose Bustamante y Guerra, Squadron Leader and Commander of the division of the four frigates Medea, Fama, Mercedes and Clara. Gives his account of the battle that they sustained in the Cape of Santa Maria, with a British division composed of the frigates In[de]fatigable, Amphion, Livel[y] and Medusa; and accompanying registry of the specie and effects which they transported.

Most Ex[cellent] Sir Pursuant to the R[oyal] orders of last July 31 and February 8, I took charge of a division of four frigates Fama, Medea, Mercedes and Clara, in which the specie and produce of Lima and Buenos Aires were to be transported to the ports of Spain, and effectively after being readied and the corresponding registries were received, with the announcement of the interim Viceroy of that capital, which arrived in my hands during the night of August 4, remitting to me the latest sealed orders, and telling me that I was free to set sail, I verified it in the morning of the 9th, at the first sign of good weather, and fresh wind from the NW. Our sailing has been fairly happy, we only experienced in this frigate Medea, some epidemic fevers, caused perhaps, by the heat and humidity of the squalls of the line, which we counted at 21days, in which,

although to tell the truth no individual was in danger of the at least forty who suffered them; [but the fever] left [these men] so yellow, weak, and bedridden, that they did not get well until after a long time. But this being what it may, on the morning of the 5th of the same month, being now in sight of the Cape of St. Maria, and predicting to arrive in Cadiz the next day; a division of four English frigates of robust bearing was suddenly discovered at a distance, which were coming towards us with all diligence; we received them formed in battle line, wall to port, in the order in which they have been named, with the battle call sounded, each in their place, and finally having taken all of those measures and precautions that prudence dictates in such cases; although we never believed that it was anything other than an attempt to reconnoiter us, being certain, that the neutrality between both nations continued, as several foreign vessels had assured us, which we had reconnoitered to that effect: especially a quiche from Denmark that very morning, and another Swedish one, the previous afternoon.

The English division, thus, likewise went forming in a close-hauled windward line, as they approached, lining up each frigate with one of ours, [with] the flags and insignias of both divisions extended; and in those terms the principal [ship], which was the one on our side, asked "for our ports of departure and arrival" and having replied that from America to Cadiz, it stayed a bit behind and fired a cannon shot, obliging us at that moment to wait for her, and telling us immediately by voice that "she would send a boat with an officer." I cannot, Most E[xcellent] S[ir], explain to Y[our ]E[xcellency] without amazement the surprise that it caused to all, [when] this 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 hard-fought battle.

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]; everyone thought: if by chance some truce could be taken, sending an official of ours to examine the matter, suspicious of it not being a political threat, appearing incredible, that they could arrive at putting in practice the way of the event, war not being declared, which was taken as fact. To this, the English official hurrying, he 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 a decision by the council of war, he left on his boat. All of us determined in the meantime for the most glorious match of battle, if no other recourse was found, each of us returned to our post, the signal to prepare at [post] was given, shortening more the distances, and the results were thus awaited. These [results] were the opening fire at the very moment the English officer reached his [vessel], started off by the frigate

of the Commodore, with another cannon shot, which served as a signal to the others, followed immediately by the one abeam the Mercedes with two strong discharges of musketry and artillery, and the others following suit; and our whole division responding with much equality and promptness, general fire was opened at that time. This must have been at around 9 and ¼, and after half an hour of well-sustained fire from one side and another: a strike of fortune of those that decide victories without the will [of] men, gave to our adversary the superiority they had been waiting in vain from their superior forces until then, inflicting upon us one of the most unfortunate and tremendous incidents, as was the blowing up of the Mercedes, which was directly at our stern. The frigate that lined up against it, taking advantage of this opportunity, turned to us without losing an instant, and lined up at our wings the two finished quickly with all of our recourse and means of defense. The Fama[,] head of our line, anticipating then our critical situation, and its inevitable

consequences, started forcing its sails, and the Medea, stuck in between the fire of the most powerful frigates with artillery of 18 and 24 caliber and cannons of 32 and 42 serviced with keys, and by a select and intelligent crew, which had just left port; when by contrast the Spanish [crew], a majority of it, greatly worried and full of consternation due to the recent catastrophe of the Mercedes, whose remains where within sight, and its diluted recovery period, not a few injured and two dead, was retiring, and even hiding, abandoning its posts and gundecks; and in addition the frigate with all its equipment ruined, and without command, its masts and mizzenmast destroyed, its jigger in pieces, many shrouds and backstays missing, the [illegible] and mainstay, the halyard, cleat, and topsail's and topgallant's sheets, with a great portion of the tackle, and finally with all the sails pestered and useless, because the fires had directed them to [illegible] de-hoist; in light of all this, it is not strange, Most Excellent Sir, that I saw myself with the dire necessity of lowering the flag, as I ordered in common agreement with all my officers, it would have been

at about ten-thirty; without ceasing to keep in mind in the middle of that conflict, that all our efforts drained, that act [of surrender] could neither be, nor even suited to be, delayed further; [. . .]

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Let me only tell Y[our ]E[xcellency ]that one of everyone's first concerns after the battle, was to send boats to the ruins and logs which remained afloat from the unfortunate Mercedes, and about fifty men were able to be saved, among them, the Second Commander and Lieutenant Don Pedro Afán, who continues to be gravely sick. I must also expose to Y[our ]E[xcellency]'s consideration how Captain [Capitán de Navío] Don Diego

de Alvear who has been employed for twenty years in the demarcation of borders of Rio de la Plata, named by me, and has come with me with the honorable post of Major General and 2nd Leader of my Division, in place of Squadron Leader D[on] Tomas de Ugarte, who came from Lima, and stayed gravely sick in Montevideo; and in the terrible disaster of the Mercedes the referred Alvear has lost his wife with seven children and one nephew; without having saved from his numerous and destroyed family, but one other child[,] a Dragon's Cadet of Buenos Aires, who luckily boarded with me on this frigate on the day of his promotion, that was the day before our departure from Montevideo. [. . .]

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. .] On other matters, Most E[xcellent ]Sir, I find myself so weak and sick[,] having been so [during] the whole journey, that I do not know if I have said what I should, nor if I will be able to sign this paper. The notorious kindness of Y[our ]E[xcellency] would do me well in overlooking the mistakes that I may have committed, protesting with all sincerity, that on this occasion, as in the many that have befallen me in the thirty-four years that I have had the honor of serving H[is ]M[ajesty], I have always procured to proceed in everything with such activity, zeal and love for the Royal service that is proper of a man of honor. At this very moment I have just found out from a London Gazette that the Fama had also been escorted, not less damaged and with greater number of dead and wounded, to the port of Posmouth. And also a flag of confinement and rigorous quarantine has been hoisted on these frigates, without excluding the English ones that have

transported part of our officers and crew as a result of the fever epidemic which I noted above. May God save Y[our ]E[xcellency] m[any ]y[ears] Frigate Medea, anchored in the port of Plymouth on 20 of October of 1804. Most Excellent Sir Joseph de Bustamante y Guerra

Most E[xcellent ]Sir Don Domingo de Grandallana. [. . .]

Spanish Original

ANNEX 18 TO EXHIBIT A (De Leste Declaration)

ANNEX 19 TO EXHIBIT A (De Leste Declaration)

June 23, 1805

Officers

H[is ]M[ajesty] awards to the Lieutenant [Teniente de Navío] Don Pedro Afan de Rivera, his promotion to effective Captain [Capitán de Fragata] of the Navy with the enjoyment of such, in the class of exempt retiree with allowance from the Naval Command of Montevideo for the collection of wage in silver.

Sir. Lieutenant Don Pedro Afán de Ribera was the only Officer who miraculously saved himself from the explosion of the Frigate Mercedes, losing what he had and health; since in addition to having become lame with part of the left foot gone, and the right arm missing, he suffers from a continuous affliction of the chest which has him in the most unfortunate state. This officer, upon his arrival to Madrid, from England, has become aware that Your Majesty deigned award, at the beginning of the second to last year, the retirement of Ordinance

old ailments from which he also suffers, and which obligated him to request retirement. 22 June 1805
H[is ]M[ajesty] in attention to the merit, and particularly the circumstances of this official, has come to award his retirement, with the rank, and salary of Captain, which he should enjoy in Montevideo as he asked, arranged at the pleasure of that naval base. On 23 June 1805.

which he had requested from Montevideo when he was on board of the Frigate Fama: but as he later experienced the stated misfortunes, which have left him useless for everything, and without means to be able to subsist, he implores Your Majesty that pitying his unhappy fate and considering his services, you deign award him the rank of Captain [Capitán de Fragata] with the enjoyment of the salary [. . .] in America, all through the means of retirement, and your R[oyal] permission to be able to live in Montevideo, the temperament of which is the most adequate to the

Navy

Sir.
[I,] Don Pedro Afán de Ribera, Lieutenant [Teniente de Navío] of the Royal Navy, . . . humbly put forth: being at [my] arrival in this Court, with which Y[our ]M[ajesty] deigned to grant [me] the Discharge of Ordinance that [I] asked for one Year ago, being on board of the Frigate Fama anchored in Montevideo, and as [I] was later transferred to the mentioned Mercedes one of those that was part of the Division of the Command of Squadron Leader Don José de Bustamente y Guerra, which 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 María, of the Officers, and crew, of which only [myself], of the [Officers], and some fortyeight 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 continuous affliction of the chest, and in general [my] whole body upset; for this [reason], Sir, [I have] the despair of not being able to serve Y[our ]M[ajesty] even in the Retiree Class in the present war, and reverently beg of Y[our] M[ajesty] a piece of your known

Mercy toward your vassals, that you concede to [me] the Rank of Captain [Capitán de Fragata] with the enjoyment of living salary of North America, all through means of Retirement, since [I] have also lost all of [my] savings of fees, and [I find myself] in such poverty, that [my] Companions have covered [my] Flesh with Alms; likewise [I beg] of Y[our ]M[ajesty] to allow [me] to establish [myself] in Montevideo, having experienced in practice that that temperament is the most adequate to old ailments, from which [I] suffer, and upon which [I] based [my] request for Retirement, in that Country. Grace, which [I] hope from Y[our ]M[ajesty] whose life may be made to prosper for many Years by the Divine [Lady]. Sir, Pedro Afán de Rivera

Spanish Original

ANNEX 20 TO EXHIBIT A (De Leste Declaration)

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Spain Madrid, December 14 The Most Excellent Sir Don Pedro Cevallos, first Secretary of State and Office, has communicated by Royal decree to all the Cabinets, with a date of the day before yesterday, the Manifest, originally written as follows: The reestablishment of peace through the Treaty of Amiens, that Europe saw with so much pleasure, was unfortunately of short duration for the good of the people. The public rejoicing, with which such a fortunate event was celebrated everywhere, had hardly finished when the public peace was disturbed once again, and the goods offered by peace vanished. The cabinets of Paris and London held Europe in suspense, and fighting between fear and hope, viewing the success of their negotiations more uncertainly each day, until discord once again struck the fire of war between them, which naturally ought to be communicated to other Powers; since Spain and the Netherlands, who allied themselves with France in the Treaty of Amiens and whose interests and political relationships are so unified between them, it was very difficult for them ultimately to fail

1116 to take part in the insults and offenses done to their Ally. Under these circumstances, His Majesty based on the most solid principles of good policy, preferred the pecuniary subsidies to the contingent of troops and vessels with which he ought to aid France in virtue of the treaty of alliance of 1796; and as much through his Minister in London, as through the English Agents in Madrid, he let it be known to the British government in the most positive way, his determined and firm resolution to stay neutral during the war: quickly having the consolation of seeing that these naïve confidences were, apparently, well received at the Court of London. But that Cabinet, which must have resolved in silence ahead of time, for its own ends, the resumption of war with Spain, while being able to declare it, not through the forms and solmenities prescribed by the law of nations, but rather through positive aggressions that would give it utility, looked for the most frivolous pretexts to put the true neutral conduct of Spain in doubt, and to give importance at the same time to the desires of the British King to preserve the peace: all with the goal of gaining time, of numbing the Spanish Government, and of keeping the public opinion of the English nation neutral about its premeditated and unjust intentions, which [the English nation] could in no way sanction. It is thus that [the English Cabinet] artificially feigned to protect various private Spanish reclamations that were directed to it in London, and its Agents in Madrid pondered over the pacific intentions of its Sovereign: but never did they show themselves to be satisfied by the frankness and friendship with which their notes were replied to, earlier imagining and pondering armaments that did not exist, and supposing (against the strongest protests on the part of Spain) that the pecuniary aid given to France was not just the equivalent of troops and vessels which were stipulated in the treaty of 1796, but rather an unlimited and immense fortune, which did not permit them to stop considering Spain as a main part of the war. But since it was still not time to make the illusion under which they were working disappear completely, they demanded specific conditions to consider Spain neutral, the cessation of all armament in these ports, and the prohibition of selling the prizes brought to [these ports]; and even though one condition or another, though solicited in too haughty a tone and rarely used in political transactions, were of course carried out and observed religiously, they nevertheless insisted on manifesting distrust, and left Madrid with urgency, even after having received letters from the Court, the contents of which they communicated nothing. The contrast that results from all this between the conduct of the Cabinets of Madrid and London, would be enough to clearly manifest to all of Europe the bad faith and the hidden and perverse plan of the English Ministry, although [the English Ministry] would not have manifested the abominable surprise attack, combat, and capture of the four Spanish frigates, which, while navigating with the full safety that peace inspires

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, were 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. These same ships, which had been enjoying the most complete hospitality, and experiencing the good faith with which Spain proved to England how true its words were, and how firm its resolutions to maintain neutrality, these same ships already harbored in the bosom of their Commanders the nefarious orders of the English Cabinet to assault Spanish properties in the sea: nefarious and profusely circulated orders, since all of its warships in the seas of America and Europe are already detaining and returning to its ports as many Spanish ships as they find; without even respecting the cargo of grain that comes from everywhere to help a loyal nation in the most disastrous year. Barbaric orders, since they do not deserve another name, those to sink every Spanish ship, whose size did not reach 100 tons: to burn those that were stuck on the coast; and to capture and take to Malta only those that exceeded 100 tons in size. That is what the patron of a Valencian catboat of 54 tons has declared, whom could save himself in his boat on November 16 upon the coast of Catalunia, when his ship was sunk by an English vessel, whose captain took his papers and his flag, and informed him of having received the expressed orders from [the English] Court. In spite of such atrocious facts, which sufficiently prove the hostile and greedy intentions that the English Cabinet had in mind, even if it wants to bring forth its perfidious system of enlightening public opinion, alleging that the Spanish frigates were not brought to English ports as prizes, but rather as detainees, until Spain gives the assurances desired that it would observe the strictest neutrality. And what bigger assurances can or should Spain give? Which nation has until now used such unjust and violent means to demand assurances from another? Even if England ultimately had anything to demand of Spain, in what way would it later remedy such abuse? What satisfaction will [England] be able to give for the sad loss of the frigate Mercedes with all of its cargo, its crew, and the great number of distinguished passengers, who have disappeared as most innocent victims of such a detestable policy? Spain would not comply with what it owes itself, nor does it believe to be able to maintain its well-known honor and decorum among the other European powers, if it shows itself insensitive to such manifest insult for much longer; and if it did not manage to avenge them with the nobility and energy attributed to its character. Inspired by these feelings, the magnanimous heart of the King, after having exhausted all the resources com-

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patible 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. Consequently, after having decided His Majesty that all English properties in these domains be embargoed in retaliation, and that the most appropriate orders for defense and offense of the enemy be circulated to all the Viceroys, the General Captains and other Leaders of the sea and land, the King has ordered his Minister in London to leave with the whole Spanish Legation; and His Majesty does not doubt that, his vassals inflamed with the just indignation that the violent behavior of England should inspire in them, will not omit any of the methods that to them seem valuable, in order to contribute with His Majesty to the most complete vengeance of the insults done to the Spanish flag. To this end, he requests that you arm yourselves in commission against Great Britain, and to bravely take over their ships and properties with the broadest abilities, offering His Majesty the greatest promptness and speed in the adjudication of prisoners, with the sole justification of being English property, and His Majesty expressly renouncing any piece of value of the prisoners, which would otherwise be reserved, in favor of the capturers, so that they may enjoy its unabridged value without any deduction. Finally, His Majesty has resolved that what is referred to here be inserted in the public papers, so that everyone may be informed: just like it will be circulated to the Ambassadors and Ministers of the King in foreign Courts, so that all the Powers be informed of these facts, and take interest in such a just cause; hoping that the divine Providence will bless Spanish arms so that they may achieve the just and convenient satisfaction for their offenses. [. . .]

Spanish Original

ANNEX 21 TO EXHIBIT A (De Leste Declaration)

ANNEX 22 TO EXHIBIT A (De Leste Declaration)

ANNEX 23 TO EXHIBIT A (De Leste Declaration)

ANNEX 24 TO EXHIBIT A (De Leste Declaration)

ANNEX 25 TO EXHIBIT A (De Leste Declaration)

ANNEX 26 TO EXHIBIT A (De Leste Declaration)

ANNEX 27 TO EXHIBIT A (De Leste Declaration)

ANNEX 28 TO EXHIBIT A (De Leste Declaration)