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 D

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 JAMES P. DELGADO, PH.D 1. I am a Maritime Archaeologist and Historian. My advanced degrees are an M.A. Case No. 8:07-CV-00614-SDM-MAP

in Maritime History and Underwater Research from East Carolina University (Greenville, North Carolina) and a Ph.D. in Maritime Archaeology from Simon Fraser University (British Columbia, Canada). I have been active in the fields of maritime history and maritime archaeology (also commonly referred to as nautical archaeology) and studies of shipwreck sites for approximately thirty years. My principal area of study has been the post-Renaissance or modern period of maritime and naval activity between 1600-1900. My current archaeological field projects are in Panama, where I am documenting shipwrecks, submerged settlements, and

fortifications at the Rio Chagres dating from 1671 to 1849, and an 1865 U.S. built submarine in the Pearl Islands. I have dual U.S./Canadian citizenship and reside in Vancouver, British Columbia.. 2. I am the President of the Institute of Nautical Archaeology ("INA"),

headquartered at Texas A&M University, College Station, Texas and Bodrum, Turkey, and previously was Executive Director of the Institute. INA is often recognized as the foremost academic institution worldwide in the scientific practice of nautical archaeology. I am participating in this proceeding in an individual capacity as an independent expert and not as a representative of INA. 3. My previous experience includes service as Executive Director of the Vancouver

Maritime Museum (1991-2006), Maritime Historian of the U.S. National Park Service (19871991), and Historian for the National Park Service unit that includes the National Maritime Museum in San Francisco (1979-1987). Throughout my career, I have regularly participated in maritime and nautical archaeological field projects involving examination and study of shipwreck sites, either as a member or as leader of a team. I am currently Chair of the Underwater Archaeology Subcommittee of the Archaeological Institute of America. I served for 10 years as a founding member of the UNESCO/ICOMOS International Committee on Underwater Cultural Heritage, and as President of the Council of American Maritime Museums. I have been elected as a Fellow of The Royal Geographical Society in London based on a rigorous review of my scholarly work and my contributions to geographical knowledge. 4. I am the principal author or editor of 12 books on maritime history and

archaeology, including the British Museum Encyclopedia of Underwater and Maritime Archaeology (British Museum Press 1997, Second Edition 2001), which was simultaneously

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published in the United States by Yale University Press. I have 41 published articles in the field of maritime archaeology and have served on the editorial board of two of the major scholarly journals in the field, the American Neptune and the Journal of Field Archaeology. I have conducted peer review of archaeological reports and manuscripts submitted for publication to the Journal of Field Archaeology, the American Journal of Archaeology, Historical Archaeology, and for Princeton University, the University of Nebraska, the University Presses of the University of Florida, University of South Carolina, Texas A&M University and the University of British Columbia. In the United States, my experience to date includes studies of more than 70 vessels for listing on the National Register of Historic Places or as National Historic Landmarks. 5. One area in which I have specialized is the archaeological investigation and study

of sunken warships. My publications specifically concerned with sunken warships include Lost Warships: An Archaeological Tour of War at Sea (British Museum Press, 2001), Khubilai Khan's Lost Fleet (University of California Press, In Press 2009); USS Arizona: Ship and Symbol (St. Martin's Press, 2001); and Ghost Fleet: the Sunken Ships of Bikini Atoll (University of Hawaii Press, 1996). My experience at the National Park Service included archaeological assessment of the U.S.S. Monitor, the U.S.S. Arizona and U.S.S. Utah in Pearl Harbor, the 1846 U.S. Navy brig Somers, and the warships U.S.S. Saratoga, U.S.S. Arkansas, H.I.J.M.S. Nagato, U.S.S. Pilotfish and U.S.S. Gilliam sunk in atomic bomb tests at Bikini Atoll. 6. Attached as Annex 1 is my curriculum vitae with further details on my

professional history and publications. 7. I have been asked by the law firm of Covington & Burling LLP -- counsel to

Spain -- to examine photographs, videotapes and other information obtained by court order from

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Odyssey Marine Exploration, Inc. ("Odyssey") concerning the shipwreck that is the subject of this case to provide my independent assessment of the site and the identity of the vessel. For this study, I have also used various historical documents and other sources of information identified in my declaration. I begin with a summary of historical context relating to the site. A. Historical Background 8. This brief summary history of the historical context is based principally on British

naval historical materials. I understand that more detailed historical information from Spanish sources is also being provided by other declarants. 9. The Royal Spanish Navy Frigate of War Nuestra Señora de las Mercedes (also

referred to as "Mercedes") is well-known in naval history as a Spanish Navy warship that exploded and sank in battle against a British naval fleet in the October 5, 1804 Battle of Cape St. Mary, the engagement that resumed war for Spain against Great Britain as an ally of France in the Napoleonic Wars and which subsequently led to the Battle of Trafalgar a year later. 10. In the 18th and early 19th centuries, frigates were versatile, swift and powerful

warships that performed a wide variety of functions. Frigates were built with one gun deck for their main battery, with additional cannon on the quarterdeck, and generally carried 30 to 44 cannon. The main battery generally consisted of 6 to 12 pounder ("pdr.", a measure of the weight of their shot) cannon. Larger warships built with the two or more gun decks necessary to house 50 or more cannon resulted in ships that were considerably slower and less maneuverable. Frigates had the combination of force, speed and range that made them ideal for independent duty to suppress pirates or privateers, escort merchant ships, conduct patrols in times of war to locate and report on enemy fleets, serve as fast military transports, and to serve other national interests, such as protection of commerce and projection of force. -4-

11.

Annex 2 is a photograph of a contemporary (18th century) shipyard model of a

typical Spanish navy frigate. This particular ship, the 34-gun frigate Diana, was built in 1792 and ended its career in 1822, and participated in the battle of Cape St. Vincent in 1797 with Nuestra Señora de las Mercedes. The model is in the Naval Museum (Museo Naval) in Madrid and accurately depicts the typical construction and fittings of a frigate of war of the era. 12. In March, 1802 the Treaty of Amiens brought about a short-lived cessation of the

war in which Spain had fought since 1796 as a French ally against Great Britain. The Treaty of Amiens did not resolve the conflict but only proved to be only a brief hiatus in the war. The Treaty of Amiens broke down by May 1803, and active Anglo-French hostilities resumed. Spain did not immediately enter the hostilities, but it remained allied with France and agreed to maintain naval forces to support France. (Annex 3 (The Naval Chronicle, Vol. III 1804-1806, at pp. 80-82).) 13. In October 1803, an agreement negotiated between Spain and France required

Spain to provide "a certain sum monthly in lieu of the Naval and Military succours which they had stipulated by the treaty [between France and Spain] to provide." (Id. at 82.) Britain notified Spain that it considered such payments a "direct subsidy of War" and that, unless Spain ceased its support of France, "War would be the infallible consequence." (Id. at 82-83.) 14. On September 15, 1804, the British Admiralty received dispatches reporting that a

Spanish Navy squadron was enroute to mainland Spain from its viceroyalties in the Americas. Captain Graham Moore, in command of the 40-gun British Navy Frigate Indefatigable, was immediately dispatched from Plymouth, England to assemble a British squadron off the coast of Spain to intercept the incoming Spanish squadron. The British Navy frigates Indefatigable, Lively, Medusa and Amphion took station south of Portugal to sight and intercept the Spanish

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squadron before it reached its destination: Cádiz. (Annex 3 (The Naval Chronicle, at pp. 7172).) 15. The British squadron was under orders "not to detain any Spanish homeward-

bound Ships of War, unless they should have treasure on board; nor Merchant Ships of that Nation, however laden, on any account whatsoever." (Id. at 85.) The four British frigates assembled off Cape St. Mary by October 3, 1804. 16. During the 18th and early 19th centuries (and at other times), it was a common

and official function of navies to transport publicly and privately owned specie and other such materials. The use of naval vessels for these purposes was part of the function of the military to protect the interests of nations and their citizens, especially in an era when maritime commerce faced the constant threat of attack by pirates and privateers, even in the absence of a declared state of war. In the case of the United States Navy, for example, this function was reflected in the April 23, 1800 Congressional "Act for the Better Government of the Navy," which authorized U.S. Navy officers to transport "gold, silver and jewels." (Annex 4 (An Act For the Better Government of the Navy, art. XXIII (6th Cong., Sess. I, 2 Stat. 1799-1813 (Apr. 23, 1800).) In accordance with this Act, standing orders were issued to U.S. Navy officers authorizing them to carry shipments of privately owned specie, and to assess charges for doing so. (Annex 5 (Report From The Navy Department to the United States Senate, at p. 53 (Jan. 1, 1825).) The same policy and practice was in effect for the British Navy. (Id.) 17. In the morning of October 5, 1804, the British squadron was nine leagues

(approximately 27 nautical miles) southwest of Cape St. Mary when Mercedes and her consorts, headed inbound for Cádiz, Spain from El Callao and Montevideo, were sighted to the southwest. The British warships gave chase and soon intercepted the Spanish squadron. The Spanish

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squadron formed line of battle and continued on course for Cádiz. (Annex 3 (The Naval Chronicle, at p. 73 (Capt. Moore's Report to the Admiralty).) 18. When the two squadrons had taken formation, Captain Moore fired a warning

shot and passed word to the Spanish Admiral that "my orders were to detain his squadron; that it was my earnest wish to execute them without bloodshed, but that his determination must be made instantly." (Id. at 74.) A British officer sent across by boat for this purpose returned with "an unsatisfactory answer" and firing commenced. (Id.) Captain Moore reported that "[i]n less than ten minutes, la Mercedes, the [Spanish] Admiral's second-a-stern, blew up along-side the Amphion, with a tremendous explosion." (Id.) Within a half hour thereafter, the Spanish Admiral struck his flag and by the end of the day all three surviving Spanish frigates had been captured. Captain Moore also reported that: "As soon as our boats had taken possession of the Rear-Admiral, we made sail for the floating fragments of the unfortunate Spanish frigate which blew up; but, except forty taken up by the Amphion's boats, all on board perished." (Id.) The force of the explosion was such that "part of one of her [Mercedes] quarter deck guns was found sticking in the rigging of the Amphion after the explosion." (Annex 6 (The Naval Chronicle for 1804, at p. 500).) 19. The three surviving Spanish frigates were taken to British ports and impounded.

Their officers and crew were treated as prisoners of war, with the officers "to be allowed their pay by our Government till the business with the Spanish Court and ours is finally adjusted." (Annex 3 (The Naval Chronicle, at p. 72).) In the wake of the Battle of Cape St. Mary, Spain declared war on Great Britain and Great Britain reciprocated. (Id. at 80.) 20. The resumption of war for Spain that was precipitated by the Battle of Cape St.

Mary and the loss of Nuestra Señora de las Mercedes set the stage for the Battle of Trafalgar a

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year later. In that battle, the most famous in naval history, the Spanish and French fleets were effectively destroyed and British naval supremacy was established. B. Overview of the Site 21. As discussed in more detail hereafter, it is evident that the shipwreck involved in

this case is Nuestra Señora de las Mercedes. At a site whose location corresponds to the Battle of Cape St. Mary are the remains distinctively characteristic of a Spanish Navy warship of the time and size of Mercedes, including weapons, structural elements characteristic of such warships, extensive remains of the copper sheathing used by the Spanish Navy to protect the wooden hulls of its warships from marine organisms, personal effects, and a variety of other artifacts that identify the vessel. Specie and other artifacts at or taken by Odyssey from the site correspond to the documented contents of Mercedes and further rule out the site being any other vessel. 22. Organic materials at the site such as wood have been degraded and/or consumed

as the normal result of immersion in salt water for two centuries. During prolonged submergence in salt water, organic materials are gradually degraded, dissolved and/or consumed by biological processes, except where that process may be slowed by the artifact being wholly or partially buried in the seabed or where other materials or processes, such as the corrosion of metal, exert an influence. The site contains remains of the wooden hull and other wooden assemblages, especially thicker wooden members such as beams and reinforcing timbers, while thinner wooden elements such as planking have largely been consumed or are buried. This process has occurred to a degree that is to be expected with the ship having sunk two centuries ago. It is well known in maritime archaeology that at the site of a two-century old shipwreck in the open ocean only a fraction of the wood and other organic materials that were not buried will

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remain. It is also evident that a substantial portion of Mercedes and its contents is buried in the seabed at the site. 23. Where the wood of the hull is no longer present in the unburied deposits on the

seabed, large numbers of iron fasteners (e.g. spikes, bolts and other pieces) and other metallic artifacts remain on the seabed, indicating where wooden hull remains or other structural assemblages which contained these fasteners came to rest, but have since been consumed or disintegrated. 24. Archaeological evidence at the site is also diagnostic of the catastrophic explosion

that is known to have occurred on Mercedes. The site contains large, scattered deposits of vessel remains that reflect the ship having been torn apart by the explosion. The site is also strewn with torn and crumpled pieces and sections of the copper sheathing that encased the lower portions of the wooden hull. The pattern of dispersion of artifacts and hull remains is characteristic of a catastrophic explosion that matches the historical documentation that Mercedes suffered such a large explosion and was ripped apart, killing the vast majority of those on board, and only fragments of the ship remained afloat. (Annex 3 (The Naval Chronicle, at pp. 73-74).) The pattern of artifacts at the site includes dispersion of heavy as well as lighter artifacts away from a central, more concentrated area of dense and heavy objects. This is consistent with an explosion so violent that a heavy cannon was broken apart and a large fragment of it was blown onto another ship, followed by the dispersion that occurs as the remains sank in waters deeper than a kilometer. A similar site, in shallower water, is the French 124-gunship L'Orient, which blew up while engaged in battle with a British fleet at Aboukir Bay, Egypt on August 1, 1798. Excavations by a French team beginning in 1998 disclosed a scattered site with artifacts dispersed as far away as 820 feet from the fragmentary remains of the bottom of the hull, which

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lay in silt. The entire stern was missing, having fragmented in the explosion; among the artifacts recovered was the rudder and a disassociated pintle as well as a wide array of other artifacts from the ship's construction, fittings, armament, and crew. 25. In addition to the information the artifacts on the seabed reveal about the identity

and fate of the vessel, the artifacts on the seabed and those taken from the site by Odyssey include a very large quantity of materials documented to have been on Mercedes for her final voyage. Exposed on the seabed are large numbers of copper and tin ingots, a small number of samples of which were taken by Odyssey. (See Annexes 8 and 12, discussed further below.) These artifacts correspond to the historical documentation that Mercedes had on board hundreds of copper and tin ingots. (Annex 7 (June 6, 1804 manifest for cobre (copper) and estaño (tin) on Mercedes).) 26. Mercedes is documented to have had more than 900,000 pesos in specie on board

(Id.). This specie would consist principally of silver coins minted in South America, given that Mercedes' final voyage originated in El Callao, the port of Lima. Visible on the seabed are numerous deposits of silver coins, clumped and piled together in shapes and masses that correspond to the wooden chests in which they were shipped. The "Odyssey Artifact Summary" (Annex 8) identifies wooden remains of shipping chests recovered from beneath piles of coins, also illustrating that the exposed wood of the chests has been consumed, while the wood protected by being beneath the coins has survived to a greater degree. Odyssey reports in the "Artifact Summary" at "Exhibit 1, Black Swan Coin Conservation Status Report," p. 2, that approximately 595,000 coins had been taken from the site, consistent with a sustained effort by Odyssey using ROV systems to remove as much of the specie as could be taken in a one-two month period.

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27.

Particularly notable with respect to the identity of the site as Mercedes are the

origins and dates of the coins as reported by the Odyssey "Artifact Summary." As stated in that document: While the dates for milled coinage recovered from the "Black Swan" site range from 1773 to 1804, the heaviest concentration come from the 1790's to the early 1800's. The plurality of coins recovered and thus far identified were struck at the mint in Lima, Peru. The Potosi Mint in Bolivia is also well represented. (Id.). 28. Mercedes is documented to have sailed from El Callao in March 1804 for

Montevideo, then sailed from Montevideo in August 1804 for Cádiz. The reported dates and origins of the coins, combined with the copper and tin ingots, and the other abundant archaeological evidence that the site in question comprises the remains of a Spanish Navy warship destroyed in a catastrophic explosion and sunk at a location that corresponds to Nuestra Señora de las Mercedes, show that there is no logical conclusion except that this site is the shipwreck of that vessel. 29. The distinctive nature of the artifacts also indicates that the identity of the

shipwreck as a Spanish Navy warship, and Mercedes in particular, was readily evident by visual examination of the cannon, vessel remains, coins, ingots, etc. 30. Although my examination of the evidence has principally focused on the vessel

remains and artifacts, I have also examined information concerning the location of the site from the contemporaneous report of the British Commander and exact coordinates displayed in the videotapes taken by the Odyssey Remote Operated Vehicle ("ROV") at the site. To maintain the confidentiality of the site location, I discuss the site location in a confidential declaration, but note here that location data displayed in the Odyssey videotapes I examined corresponds to 1804 location information concerning the battle, in which Mercedes was the only casualty.

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31.

In the following sections of this declaration, I first provide further general

observations about the site. Next, I provide and discuss photographs and freeze-frame videotape images of artifacts that assist in identifying the site. I end with concluding observations. C. General Site Observations 32. The site rests at a depth of approximately 1,100 meters at a location that has been

publicly described as approximately 100 miles west of Gibraltar. Videotapes and photographs show a seabed that is generally flat and featureless, except for the remains of Mercedes. The videotapes and photographs also show that this is an area that has active currents at the seabed which produce lateral movements of bottom sediments. One effect of the bottom current is "scouring," in which localized eddies around an exposed artifact produce a shallow depression around the artifact. (See, for example, Annex 9, Photograph 9.8.) It is also evident that many artifacts, including cannon and vessel remains, are wholly or partially buried, either because their weight drove them into the sediment or because lateral movement of sediment has covered them. The movement of seabed sediments has been documented and observed at sites of substantial depths, including RMS Titanic, at 12,460 feet. The bottom sediments observed in the video footage include areas where sand has formed berms, and patterning of the sand demonstrates the effects of current on sediment movement. This movement of sediment has alternately exposed and buried artifacts and the ship's remains. More recent "intrusive" items, such as plastic bags and torn pieces of fishing nets have become wrapped around exposed artifacts. 33. The site covers a concentrated area of features and artifacts, with a central,

smaller area with the heaviest concentration of artifacts. (See my Confidential Declaration, Annex 1 (a photomosaic of the site area produced by Odyssey).) As a precaution to maintain the confidentiality of the site location, I discuss the dimensions of these areas further in my

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confidential declaration. This pattern indicates that from a centralized point, material from the ship, including chests of coins, ingots, cannon, and fittings and equipment was ejected in a focused lens or concentrated area. Major sections of the ship came to rest in pieces as a result of the explosion, and these sections, as well as other artifacts, at the site extend to the east and north of the area with the densest concentration. 34. The construction of wooden warships such as frigates of the late 18th century was

characterized by the use of iron and bronze reinforcement pieces, and heavy timbers that formed particularly strong junctions between the hull and the gun deck(s), which were built to hold the weight of large numbers of cannon. The strength of the junctions of deck and hull resulted in fracturing of the hull as the force of the blast would emanate from the gun powder magazine and move upward and sideways to exit through the less reinforced areas away from the junctions. This broke the hull of Mercedes into sections which were deposited on the seabed. This is apparent in the disposition and type of remains visible on the site. 35. In the aftermath of the explosion, Mercedes' remains have undergone a "filtering"

process that occurs when a vessel breaks apart and sinks. This process is seen at the site. Lighter items either remained afloat or sank more slowly, and were moved away from the central site where denser and heavier items tended to come to rest in the initial deposition. Sections of wooden structure also are scattered more widely, as they tend to sink more slowly. Fragments of the ship such as superstructure or decking may have also become separated and floated away or sank in a slower process that left them some distance from the center of the site. The result is a site whose contents, dimensions and patterns of dispersion and disposition on the seabed are consistent with what one would expect for Mercedes.

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36.

Vessels often sink in sections even when they were not breached by an explosion

on the surface. RMS Titanic, for example, broke into sections as it sank to a depth of approximately 12,460 feet. The bow and stern sections of the ship are separated by 1,970 feet, and artifacts that spilled out from inside the hull make up a debris field around the hull remains. Vessels may also capsize before or during sinking and heavier objects will fall to the seabed before the rest of the vessel. The German battleship KMS Bismarck, sunk in approximately 15,000 feet in action in 1941, is represented by a more than 2,000 foot long trail of artifacts and vessel remains including fragments of armor, superstructure, gun turrets and other heavy objects which fell free of the inverted hull as it sank, and a patterned distribution of sea boots that marks the resting places of crew who drifted in the sea and then sank separate from the battleship. 37. Where a shipboard explosion breaches the lower hull, as occurred with Mercedes,

this scattering process will be pronounced. Heavier objects below decks, such as ingots and coin chests, will spill out in a denser concentration. The site in question is a shipwreck in which these processes have occurred. 38. On the seabed, as noted earlier, scouring by currents has created pedestals where

in many cases iron-based artifacts rest on small mounds that are above the current seabed level. These can be seen as reddish brown-colored deposits in the photomosaic, which is Annex 1 to my Confidential Declaration. This occurs in a formation process in which corrosion of ferrous artifacts leaches iron oxide into the seabed beneath and around the artifacts. The leached iron oxides create a deposit of stiffened, current-resistant sediment beneath and around the artifact. The reddish brown coloration is indicative of iron oxide leaching from an iron artifact into the surrounding sediment. This indicates that the artifacts resting on the pedestals are at the level of the seabed at which they were originally deposited, while other remains were buried when they

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came to rest or by shifting sediment. Those cannon that are visible in photographs and videotape footage, for example, show widely varying degrees of burial, with some only barely visible. The presence of numerous other buried artifacts can also be discerned. Therefore, many artifacts at the site likely are not exposed and are buried beneath the bottom. This would include organic materials such as human remains that would be preserved by being covered. 39. One other observation is that the active subsurface current and the bioturbation of

the seabed show that the normal biological and chemical processes of corrosion and consumption of sunken artifacts in the open ocean have occurred. As an example, Artifact AMS-D-07-0005MY-CB (Annex 8, p. 3) is noted to be a "Cannonball, heavily oxidized." An iron artifact, Artifact AMS-D-07-0013-MY-CB, is also described as a "fragment of graphitized iron hollow cannon ball." (Id. at 4.) The reported condition of these iron artifacts is consistent with the degradation to be expected for iron artifacts at a site such as this. 40. I have examined the Answers to Interrogatories submitted to the Court by

Odyssey on April 11, 2008 (Dkt. 105). Odyssey's Answers state that "the most outstanding characteristic of this site is the actual absence of a vessel." (Answer to Interrogatory #3). This statement is inexplicable. Abundant diagnostic material is visible on the seabed to demonstrate that this is a shipwreck site. As can be seen in the photomosaic and in the additional images I provide and discuss, the site contains cannon, rigging, hull remains, hull sheathing, ballast, ship's stores, and a wide variety of other artifacts that reflect the remains of the sunken Mercedes, in the condition that one would expect following a catastrophic explosion, sinking to an 1,100meter deep seabed, and the effects of lying for 200 years on the seabed. 41. The general condition of the site is consistent with what has been observed at

other sites, including wooden warships of the period, that were wrecked in violent circumstances.

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For example, HMS Pandora, a British Royal Navy frigate wrecked on the Great Barrier Reef off Australia in 1791, lies in approximately 100 feet of water. When discovered in 1977, the wreck site was characterized by artifacts showing where fragments of the hull had been deposited and subsequently consumed by marine organisms. Ongoing survey and excavation since 1977 has shown that, despite the fact that the site is subject to wave action, 25-30% of the original hull of Pandora is buried in the sediments. Another shipwreck site, the French warship L'Orient, sunk in the Battle of the Nile on August 1, 1798 and resting in Aboukir Bay, Egypt, has previously been discussed. 42. I also note that Odyssey's Answers to Interrogatories also state that "[t]he

distribution of the artifacts could indicate jettisoned cargo . . . ." (Dkt. 105, at 4.) This statement is also inexplicable. As can be seen in Annex 1 to my Confidential Declaration and in the additional images I discuss below, the artifacts on the seabed show that, if the artifacts were "jettisoned," whoever did this disassembled and jettisoned the entire ship. This is of course inconceivable. The presence of the vast quantity of ship remains and other artifacts within a concentrated site on the seabed also cannot be reconciled with the suggestion by Odyssey that the site may reflect some jettisoning process. At 1,100 meters, the site is far below anchor depth. It is implausible in the extreme to say that jettisoning from an unanchored ship in the open Atlantic Ocean could have created this concentrated shipwreck site. D. Detailed Observations of the Site Photomosaic 43. To provide more specific visual references for my observations from the site

photomosaic, I have placed red numbers on Confidential Annex 1 to my Confidential Declaration (Exhibit E) -- a photomosaic of the site --, to designate examples of specific features or areas, as explained below. Using a magnifying glass to examine the photomosaic is

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recommended. Larger versions of the site photomosaic, in which the site is displayed in six sections on larger sheets can be provided on request. 44. Number 1: A length of thick rope with a large loop at one end. This may be an

intrusive artifact. However, rope from shipwrecked vessels can be preserved in maritime archaeological contexts, even in an exposed position in an active environment, especially when a coating of tar has been applied as a preservative for rope employed as "standing rigging." This appears to be a section of ship's rigging, and is also referenced later in this declaration in relation to photographs #9.41 and 9.42. 45. Number 2: Curved mass of iron concretion indicative of an area where a section

of wooden hull has been consumed by chemical and biological processes. 46. 47. 48. Number 3: Iron cannon on a pedestal. Number 4: Iron cannon on a pedestal. Number 5: Large mass (approximately 8 x 6 meters) of iron concretion indicative

of an area where a section of wooden hull has been degraded or consumed by chemical and biological processes, with an associated iron cannon approximately 3 meters in length. 49. Number 6: Mass of iron concretion indicative of an area where a small section of

wooden hull has been consumed by chemical and biological processes. 50. Number 7: A large, detached bronze pintle, a ship fitting attached to the sternpost

of a vessel and upon which the ship's rudder is hinged. The curvature of the arms of the pintle indicates the form or swelling of the ship's bottom at the lower stern. Associated concretion indicates that wooden hull remains have been consumed by biological and chemical processes in the area. This artifact is discussed in more detail later in relation to Annex 9, photograph 9.33.

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51.

Number 8: Mass of iron concretion indicative of an area where a section of

wooden hull has been consumed by chemical and biological processes. The proximity of this to Number 5 indicates that this area is where a large assemblage of wooden ship remains came to rest. A large number of smaller concretions are indicative of ship fasteners such as spikes, as well as longer linear concretions indicative of drifts (bolts). In ships of this era, drifts as long as five feet in length were used to hold hull sections together. 52. Number 9: Concretion of a complex artifact indicative of an iron reinforcing

member from a large wooden vessel. This type of fitting is found on 18th and 19th century military vessels to support the weight of heavy guns. 53. Number 10: Concretion indicative of two linear iron artifacts. These are

indicative of iron fasteners used to fasten large timbers, and their spacing indicates that a section of hull was consumed here. 54. Number 11: Curvilinear cluster of iron concretion indicative of partial burial of

cultural material at the site. 55. Number 12: Mass of iron concretion indicative of an area where a section of

wooden hull has been consumed by chemical and biological processes with linear iron artifacts indicative of ship fastening drifts. 56. Number 13: Mass of iron concretion indicative of an area where a section of

wooden hull has been consumed by chemical and biological processes with linear iron artifacts indicative of ship fastening drifts. 57. Number 14: This is a small bronze cannon. Its size and appearance indicates that

it is a bronze 3-pdr. pedrero of the late 18th century and of Spanish manufacture.

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58. 59. 60.

Number 15: Iron cannon on a pedestal. Number 16: This marks examples of the many copper ingots at the site. Number 17: Two closely associated, narrow linear iron artifacts, one lying

beneath the other and partially buried in the seabed. These appear to be iron cannon. 61. 62. 63. Number 18: Iron cannon on a pedestal. Number 19: Iron cannon on a pedestal. Number 20: Mass of iron concretion indicative of an area where a section of

wooden hull has been consumed by chemical and biological processes. The concretions are indicative of iron fasteners for a wooden hull. Also present here is an exposed area of a late 18th century anchor; this artifact is also noted later in my declaration as photograph number 9.35. 64. 65. Number 21: Iron cannon. Number 22: This partially buried, approximately 5 meter long narrow cannon,

and its shape is indicative of a media culebrina, or culverin. This artifact is discussed later in this declaration in association with photograph numbers 9.7 and 9.29 through 9.32. 66. 67. Number 23: This is a partially buried bronze cannon indicative of a pedrero. Number 24: Mass of iron concretion indicative of an area where a section of

wooden hull has been consumed by chemical and biological processes with linear iron artifacts indicative of ship fastening drifts. 68. Number 25: This is a linear iron concretion with a narrow, curvilinear arm on its

left side that is indicative of either an iron reinforcing member from a large wooden ship or the partially buried shank and one arm of a smaller iron ship's anchor.

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69.

Number 26: The center of an area of tightly deposited artifacts that include

exposed silver coins, copper ingots, and iron concretion. As noted in the general discussion earlier, this is the approximate center of a zone of deposition indicative of an event such as an explosion. E. Detailed Observations from Video Footage and Still Photographs 70. I have also examined 54 DVDs of videotapes of the site, as well as still

photographs, that have been provided by Odyssey. From the videotapes and still photographs I examined, I have selected the images provided hereafter to show closer views of especially diagnostic site features. These images are grouped in the following categories: (1) site conditions and characteristics; (2) hull remains; (3) artifacts and features indicative of an explosion; (4) artifacts including personal effects, that are indicative of a warship; (5) features and artifacts that are ship-related; (6) diagnostic, non-maritime artifacts that further identify the site. These images are provided as a group as Annex 9, with subnumbers. Site Conditions and Characteristics 71. Photograph 9.1 shows an area where metal artifacts rest on pedestals of denser

sediment which has been impregnated and stiffened by iron oxide from corrosion, together with five copper ingots, and the remains of a three-compartment chest of silver coins which have concreted together due to corrosion of the silver. 72. Photograph 9.2 shows another area with corroded iron artifacts, pedestals of

concretions, and partially buried artifacts. Note the circular artifacts largely buried in the sediment near the middle, top area of the image and at the bottom center edge.

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73.

Photograph 9.3 shows an area that contains the remains of a section of the

wooden hull of the shipwreck. The wood has been largely consumed by marine organisms, but the iron fasteners that held the hull together remain as corroded and concreted (covered with a mixture of corrosion by-products and bottom sediment) masses. Corroded, concreted, and partially buried iron cannon can also be seen. The section of the hull represented here may be a portion of the hull at the gun deck level. 74. Photograph 9.4 shows erosion of the sediment partially exposing a largely buried

section of wooden hull remains, with copper sheathing from the lower sections (below the waterline) of the hull. I discuss the copper sheathing further below. 75. Photograph 9.5 is another buried section of hull that is partially exposed due to

sediment shift. This area will be discussed in further detail in the section on hull remains. It is a portion of the bottom of the hull with associated ballast. 76. Photograph 9.6 is an iron cannon, partially exposed by erosion, with a section of

modern fish net snagged on the muzzle. 77. Photograph 9.7 is another partially exposed cannon, most of which is buried. The

muzzle detail that is visible shows that this particular cannon is a highly distinctive mediaculebrina, two of which were on Mercedes, as discussed further below. 78. Photograph 9.8 shows the muzzle of an iron cannon that has also been exposed by

scouring. In addition to showing specific artifacts, these photo images, 9.1 through 9.8, illustrate the burial and pedestaling processes at the site.

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Hull Remains 79. As noted earlier, the site contains multiple features exposed or partially exposed

on the seabed which represent the remains of the hull of a large wooden ship. These features, are densely associated patterns of deposits of wood, corroded and concreted iron fasteners and fittings. In some cases, these features are associated with distinctive maritime artifacts and ordnance that further indicate that this is a site of the wreck of a warship. The exposed remains of the hull do not represent the intact hull of the vessel, but to expect this at a site where a vessel had been the subject of an explosion is not logical. The site represents a shipwrecked vessel on the seabed in the same way that the remains of TWA Flight 800, which exploded off Long Island, and Pan Am Flight 103, which exploded near Lockerbie, Scotland, represented crashed aircraft sites. 80. Photograph 9.9 shows an area of hull remains. The linear artifacts are iron and

bronze bolts and spikes that fastened the timbers. Some of the linear iron artifacts have wood remains still attached. This wood has been partially protected from marine organisms because the corrosion of the metal leached out toxic oxides into the wood that is in close proximity to the metal. Of particular note is the angled artifact in the lower left quadrant. This is an iron reinforcing element, in this case an iron knee. Iron deck hanging knees are heavy brackets that fit vertically beneath a deck beam and strengthen its attachment to the hull. Lodging knees were fitted horizontally beneath a deck to strengthen the timbers around hatchways and on decks that bore heavy loads such as cannon. These devices were introduced in the construction of wooden warships of the late 18th century. 81. Photograph 9.10 is a closer view of a section of hull remains. The pattern of

striation on the angled artifact in the lower right corner represents the grain of oxide-

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impregnated, partially consumed wood. Two angled artifacts in the image are iron deck knees to support the weight of the gun deck. Numerous corroded fasteners can also be seen. 82. Photograph 9.11 is another angled iron knee. It is larger and has a different

configuration than those in photographs 9.9 and 9.10. Iron and bronze knees and other such reinforcing pieces were custom manufactured by blacksmiths to fit in the hull. 83. Photograph 9.12 is a deposit indicative of wooden hull remains, likely decking.

Bolts and spikes, but not the larger reinforcing members that were below deck, are present. 84. Photograph 9.13 shows another area of hull remains, together with an anchor.

The large iron object running down from the top of the image and into the sediment is the shank of an iron anchor. To the left of the anchor shank is a small iron lodging knee. 85. Photograph 9.14 is another area of hull remains which shows corroded and

concreted bolts and spikes in a three-dimensional interrelationship, reflecting the gradual degradation of the timbers of a wooden hull. 86. Photograph 9.15 is another view of the feature noted in Photograph 9.5. This is a

section of the bottom of the ship's hull which has been exposed by sediment movement. The partially consumed remains of a large wooden beam lie adjacent to lines of cobble and pebble ballast stones. The beam has a corroded iron ring fastened to it. This ring is the socket for an iron "tween deck" stanchion that extended vertically from the bottom of the hull to the gun deck. This type of stanchion was introduced in the late 18th century in warships to help support the weight of the gun deck(s) and to support and hang the hammocks on which the crew slept (Annex 10, (Falconer's Universal Dictionary of the Marine p. 497 (1815).)

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87.

Photograph 9.16 is a closer view of exposed ballast on the seabed which is

associated with the feature in Photograph 9.15. As noted in the 1815 edition of Falconer's Universal Dictionary of the Marine (originally published in 1769), ballast was "a certain portion of stone, iron, gravel, or such like materials, deposited in a ship's hold" (Annex 10, p. 29). Ballast was used to weight the lower hull and trim the vessel. In British Royal Navy warships, iron "pigs" were used in conjunction with "shingle ballast," or gravel, which was "spread and leveled" over the iron. Spanish Navy ships also used shingle, or gravel, for ballast. (Id. at 30.) The ballast stones in the image are river- or beach-washed stones (cobble and pebbles) of the type commonly used as ballast. The archaeological excavation of the Spanish shipwreck El Nuevo Constante, wrecked on the Louisiana coast in 1766, found similar ballast; described as "water-rounded cobbles" similar to ballast reported from "shipwrecks of the New Spain fleets that sank off the coast of Florida in 1715 and 1733 and [] reported from other Spanish shipwrecks in the Caribbean region." (Annex 11 (Pearson and Hoffman 1995: pp. 128, 130-31).) I have observed this same type of ballast on shipwreck sites of the period of the Mercedes. 88. At this point, it should be noted that Odyssey's April 2008 Answers to

Interrogatories state that "no ship's hull [or] ballast pile" was "discovered, at the site" (Dkt. 105). This statement is inexplicable, as the foregoing images clearly show the presence of hull remains in the condition to be expected at the site, as well as ballast in place on a section of the lower hull. Odyssey's "Gibraltar Artifact Summary" (Annex 12, p. 4) also shows that "small stones (origins undetermined)" were taken by Odyssey from the site. From the photograph of these stones, it can be seen that they were part of Mercedes' ballast, also seen in Photographs 9.15 and 9.16.

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Artifacts and Features Indicative of an Explosion 89. In his letter to the Lords Commissioners of the Admiralty reporting on the Battle

of Cape St. Mary, Captain Moore reported that after the explosion "we made sail for the floating fragments of the unfortunate Spanish frigate which blew up." (Annex 3, p. 74.) One of the fragments, from which survivors were rescued, was "the ship's forecastle" which had drifted from the site of the explosion "after it had separated from the remainder of the hull." (Annex 13 (The Naval History of Great Britain, pp. 288-289 (1859).) 90. Photograph 9.17 shows wooden hull remains with associated copper sheathing.

The copper is both torn and crumpled, which indicates dismemberment of the hull by explosive force. In a large detonation, particularly with an agent such as black powder, there is a violent release of energy in the form of heat and blast effect that forms a shock front of peak overpressure. Traveling behind the shock front is a drop in pressure, a negative phase in the blast that is less than the ambient pressure. This creates an alternating "pressure phase" and "suction phase" which would crumple the copper sheathing. 91. Photograph 9.18 is a deposit of copper sheathing that also evidences the

distinctive effects of a large explosion. The standard size of a section of copper sheathing, known as plates, was approximately 2 by .5 meters. The shape and size of the sheathing seen here suggests that at least two plates that were fastened to each other were crumpled and torn by the explosion. 92. Photograph 9.19 is a largely buried section of hull remains with fragments of

crumpled copper sheathing showing the same effects.

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93.

Photograph 9.20 is another crumpled section of sheathing that was crumpled and

folded by blast effect. 94. Photograph 9.21 is a freeze frame capture from ROV footage also showing the

distinctive crumpling effects of the alternating "pressure phase" and "suction phase" of an explosion. 95. Photographs 9.22 and 9.23 show a bronze 3-pdr. pedrero, a small Spanish Navy

antipersonnel cannon, which has suffered substantial blunt force trauma to its breech area. The breech section is missing its rounded cascabel and is deformed. (Photograph 9.23) This is also indicative of a violent event such as blast damage. 96. Photograph 9.24 is a knee with attaching bolts still in place that has particularly

graphic evidence of blast damage. The presence of the bolts indicates that it was not disassembled and jettisoned, but rather came to rest on the seabed with Mercedes. The two large bolts on the curved leg of the knee are in their original position. However, one of the two bolts on the straight leg of the knee has been deformed and bent. The bend in one arm also indicates a strong force deformed this heavy piece of metal. This is not damage that occurs during sinking. This piece therefore may have been located close to the site of the explosion. Cannon 97. Iron and bronze cannon at the site are naval pattern iron and bronze guns of a size

and style that identify the shipwreck as a Spanish warship, and specifically a warship of the late 18th or early 19th century. The iron cannon visible in the videotapes and photographs are smoothbore, muzzle-loading guns of the late 18th century. Some of these weapons have been previously discussed (Photographs 9.6, 9.7, 9.22, 9.23). The size and shape of the iron guns

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indicate that they are 6 to 12-pdr. cannon. This corresponds with the principal armament of Mercedes. In the images I have examined, at least 17 individually identifiable cannon have been noted. 98. While some of the visible cannon are isolated, others are associated with masses

of concretion indicating that they sank to the seabed attached to or on top of wooden structure, for example, Photograph 9.3. Additional visible cannon are partially buried in the sediments, or covered by deposits of hull remains and/or concretions. 99. As discussed below, the cannon that are most clearly visible are bronze pedreros.

Because the copper in bronze is toxic to marine organisms and does not corrode like iron, identifying features of the pedreros are clearly visible in the photographs. These cannon can be seen to match the standard Spanish Navy design for these weapons. 100. There are also cannon balls noted on the seabed. Odyssey reports the recovery of

two iron cannon balls, one of them a fragmented shell (AMS-D-07-0013-MY-CB) and the other a single ball (AMS-D-07-0005-MY-CB). (Annex 8 (Odyssey's "Artifact Summary," pp. 3-4).) One diagnostic cannon ball that indicates a warship of the period is AMS-D-07-0013-MY-CB, described by Odyssey as a "fragment of graphitized iron hollow cannon ball" (Id. at 4). The hollow nature of the ball indicates that it is a shell. Shells were hollow balls filled with powder and fused to explode on impact. They are an 18th century invention and were utilized until the mid-19th century. 101. Other indicators of a warship include the iron and bronze reinforcing members

noted in the hull remains previously discussed, as reinforcements of this sort were developed in the late 18th century for warships to support the weight of a cannon-laden gun deck. (Photographs 9.9, 9.10, 9.11, and 9.24). - 27 -

102.

Photograph 9.25 is an iron 12 pdr. cannon. The style of the gun is indicative of

Spanish manufacture. (See Annex 14 (a Spanish Navy cannon design of 1784).) 103. Photograph 9.26 is an iron cannon. The style of the gun is also indicative of

Spanish manufacture. 104. Photograph 9.27 is a Spanish Navy cannon which is rising at a steep angle from

the seabed. The style of the gun is indicative of a Spanish Navy 24-pdr. obus, a short-barreled weapon similar to a pedrero. (See Annex 15.) 105. Photograph 9.28 is a 3-pdr. pedrero that is resting in a slight depression on the

seabed. The design features are fully visible and identify this as a Spanish Navy weapon manufactured per 1784 Spanish Navy specifications for pedreros. (See Annex 16 (drawing of the specifications of a 1784 Spanish Navy pedrero).) Photographs 9.22 and 9.23, discussed earlier, are another example of this type of weapon. 106. In addition to these shipboard guns, there are two highly distinctive cannon at the

site which are older weapons that would not have been in use at the time of the other ordnance on Mercedes. They are two partially buried bronze media culebrinas, or light culverins, long, narrow muzzle loading cannon of the late 16th century that remained in use through the 17th century. The presence of these cannon is explained by the manifest of Mercedes which reports that she was transporting two culverins from El Callao to Cádiz, Spain. On one manifest these cannon are referred to as "Cañones de bronce Inútiles" ("useless bronze cannon") (Annex 7), and in the report of Spanish Navy Squadron Commander Tomás Ugarte dated June 8, 1804 they are identified more specifically as "dos culebrinas excluidas de Bronce" ("two discarded bronze culverins"). (Annex 17, p. 4.) These two anachronistic weapons at the site thus provide further specific confirmation of the shipwreck as Mercedes. - 28 -

107.

Photographs 9.29 through 9.32 are freeze frames from ROV footage that show

details of one of the two culverins, although the resolution is limited. Photograph 9.29 shows the exposed lifting lugs. Photograph 9.31 is a closer view of the lugs, which appear to be cast in the form of dolphins as was common for culverins. Photograph 9.31 is the long, narrow barrel of the weapon, with its partially buried muzzle. Photograph 9.32 also shows the half buried, flared muzzle. The lifting lugs, overall shape, muzzle design and bronze composition are all diagnostic features of this type of gun. (Annex 18 (Martin and Parker (1999), pp. 215-219).) Other Ship-Related Features and Artifacts 108. The previously cited "Gibraltar Artifact Summary" (Annex 12) prepared by

Odyssey includes a number of examples of small artifacts related to the construction and operation of the ship, as well as life on board. Described as an "unidentified metal object," the first example (#15 (p. 5)) is a small bronze ship's hull fastener. The second example (#22 (p. 8)) consists of three optical lenses from an octant or a sextant, which were navigational instruments used to take astronomical observations on deck. The third (#59 (p. 20)) is a collection of copper nails. These are sheathing nails used to attach the copper sheathing plates to the ship's hull. Another item (#58 (p. 20)) is a "brick shard," as identified in the Odyssey document. Bricks of this type were placed beneath cooking and heating stoves to protect the decks of wooden ships of the 18th and early 19th centuries. 109. Photograph 9.33 shows a highly diagnostic artifact on the seabed. This is a

bronze rudder pintle. Pintles were mounted on the rudder and fit into gudgeons on the sternpost, providing a hinge on which the rudder swung. Large cast bronze fittings such as this pintle were expensive and largely limited to ships built for navies and large commercial enterprises. The bronze through-bolts that attached it to the rudder are intact, indicating that the pintle, with a

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section of the rudder attached, came to rest on the seabed in a shipwreck and not as a discarded fitting. 110. Annex 19 is a photograph of a pintle in the collection of the Spanish Navy

museum in Cádiz, Spain. It is the same design as the Photograph 9.33 pintle. Annex 20 is a photograph of the stern and rudder of a Spanish Navy Frigate preserved on land, showing how a pintle was installed. 111. Photograph #9.34 shows a section of copper tubing or pipe of a type indicative of

a late 18th century ship's suction pump of the kind used principally in warships. Built into the deck structure and fastened to supporting members of a hull near the masts, these pumps used sections of tubing that ran from the main deck down to the bilges. The tubing is twisted and collapsed, which also evidences blast effect from an explosion. 112. Photograph 9.35 shows the shank of a large iron anchor with the anchor ring at its

end. This anchor is associated with hull remains, and is partially buried and obscured by concreted iron fastenings. The hull remains were previously discussed with photograph 9.13. 113. Photographs 9.36 and 9.37 are two views of a fluke of a smaller anchor, probably

a kedge anchor, which lies with its shank and stock angled downward and buried in the seabed. Concretions, marine growth and the camera angle obscure the rest of the anchor. Photograph 9.37 shows the fluke more clearly, including the characteristic broad fluke shape and sharp angle of an 18th century naval anchor. (See Annex 21 (photograph of anchor on the 18th Century model of the Frigate Diana).) 114. the hull. Photograph 9.38 is a complex iron artifact that may be a reinforcing member for

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115.

Photograph 9.39 is a video screen capture of an iron artifact that appears to be a

preventer plate, the bottom fitting from a late 18th century chainplate. Chainplates were attached to the outside of the hull by long bolts (one of which is visible at the upper left corner of the image) and acted as the anchoring base for a series of metal sections that in turn led to deadeyes and the standing rigging (the lines that braced the masts). The presence of this artifact with a bolt attached, indicates that the chainplate came to rest on the seabed as part of a fragment of the ship's hull that was blown outward. (See Annex 21 (photograph of the anchor and nearby chainplates on the model of the Frigate Diana.) 116. Photograph 9.40 is a screen capture of ROV footage which shows one, and

possibly a second, distorted iron artifact, both of which are heavily concreted. These appear to be a truss and associated hardware from a ship's yard, one of the sail-bearing spars attached to a mast. 117. Photographs 9.41 and 9.42 show a section of partially buried large-diameter

cordage or "cable" used in large sailing vessels of the 17th-19th centuries. The cable is thickly plaited and appears to have been treated with tar. The loop and tar suggests it is a piece of standing rigging. The presence of this section of rigging on the site is also indicative of the dismasting of Mercedes. Diagnostic, Non-Maritime Artifacts and Personal Effects That Further Identify The Shipwreck 118. A variety of diagnostic, non-maritime (not associated with the construction,

arming or handling of the ship) artifacts provide especially specific evidence to further identify the site.

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119.

As previously noted, the coinage recovered by Odyssey provides strong and

specific evidence in itself that the site is Mercedes: The small number of coins recovered from the "Black Swan" site evaluated to date are almost exclusively milled coinage struck in South American Spanish Crown Colonies. * * *

In the small sample which has been analyzed so far, milled coinage recovered from the `Black Swan' site date from 1773 to 1804. * * *

While the dates for milled coinage recovered from the "Black Swan" site range from 1773 to 1804, the heaviest concentration come from the 1790's to the early 1800's. The plurality of coins recovered and thus far identified were struck at the mint in Lima, Peru. The Potosi Mint in Bolivia is also well represented. (Annex 8, p. 6) The coins are described as of a single nationality, Spanish, and the coins of no other nation or empire are cited. The coins also are reported to have been struck at mints closest to El Callao, Mercedes' port of origin for her final voyage. The reported date range of the coin population also provides what in archaeology are called a terminus post quem and terminus post ante of 1804 for the site. 120. As noted previously, the site is also highly distinctive because of the presence of

large numbers of copper and tin ingots, which likewise point with specificity to the documented contents of Mercedes. Samples of these ingots were also taken by Odyssey from the site and are shown on pp. 3-4 of Odyssey's "Artifact Summary." (Annex 8). 121. Odyssey's "Gibraltar Artifact Summary" (Annex 12) also contains photographs of

a number of non-maritime artifacts that are of lesser specificity but are worthy of comment.

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122.

Artifact #2, identified as a "metal buckle," is a personal effect and nearly identical

to a shoe buckle recovered from El Nuevo Constante (1766), a Spanish shipwreck in Louisiana. (Annex 11 (Pearson and Hoffman (1995), p. 183).) 123. Artifacts ##17, 18, and 38 are personal effects, and the remains of oval and

rectangular buckles, also similar to those recovered from the wreck of El Nuevo Constante. (Id.) 124. Artifacts ##11, 36 and 39 are lead shot; one of 3 cm in diameter and the others

half that size. Lead shot was carried as ammunition for muskets, which on a naval vessel would form the armament for the ship's 63-man Marine Detachment. (Annex 17). Lead shot of this type was also packaged as a cluster of balls. Wrapped in canvas and loaded in a cannon, this ammunition was termed tiros de metrallas, and fired in battle to scour the decks of the enemy. (Annex 10 (Falconer's Universal Dictionary, pp. 168, 468 (1815).) 125. Artifacts ##14, 30, 41, 42, 51, and 54, described mostly by Odyssey as

"unidentified metal object[s]," are fragments of cutlery -- spoons or forks, of a style consistent with the late 18th or early 19th century. 126. 127. Artifact # 32 is the trigger guard for either a pistol or a musket. ROV footage also shows numerous examples of highly diagnostic artifacts on the

seabed. Discussion of these now follows. 128. Photographs 9.43, 9.44 and 9.45 are photographs and a freeze frame from ROV

footage showing typically concreted masses of coins, with closely associated ingots. 129. Photograph 9.46 is a screen capture of a feature indicative of a chest that carried

the personal tableware of an individual or individuals on board the ship. The use of personal silver and tableware was common among naval officers of the 18th and 19th centuries,

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particularly among officers of means. These silver or pewter plates and other utensils were deposited in a roughly rectangular shape which probably approximates the dimensions of the original chest, now consumed by marine organisms. 130. Photograph 9.47 is a closer view of this same stack of plates, showing that they

rest atop the corroded remains of a silver or pewter tray or platter. A handle of the platter is the curved object at the lower right corner of the image. Plates of this style were also recovered from the 1766 wreck of El Nuevo Constante. (Annex 11 (Pearson and Hoffman (1995), pp. 178179).) 131. can be seen. 132. Photograph 9.50 shows a large glazed ceramic jar in a scour pit. The shape of the Photographs 9.48 and 9.49 are closer images in which spoons and at least one fork

jar and its lip indicates it is a Spanish olive jar or a botija of a type classified as a late eighteenth century Type B jar. (Annex 22 (Marken (1994), pp.103-105, 129-138). The survival of an intact large ceramic jar is not incongruous. The chaotic patterns of blast effect, and violent sinking do not rupture all artifacts in a ship. The aircraft carrier USS Saratoga was sunk by a close proximity 20-kiloton nuclear detonation on July 25, 1946 which lifted and dropped the vessel 30 meters and moved it half a kilometer before sinking. Unbroken glass light bulbs remained intact on the flight deck. Similarly, plate glass windows and glass bulbs remain intact on the wreck of RMS Titanic despite a four kilometer fall at approximately 70 kilometers per hour to the seabed. 133. Photograph 9.51 is another Spanish olive jar or a botija of a type classified as a

late eighteenth century Type B jar. (Id. at 103-105.)

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134.

Photograph 9.52 is a freeze frame of an image showing the rim and upper body of

a partially exposed, buried olive jar or a botija. A second, smaller jar may lie partially buried below and close to the first jar. 135. Photograph 9.53 (magnified for better visibility) shows an 18th to 19th century

naval cutlass in its scabbard lying on the seabed. The handle is at the upper right edge of the photo. The slight curvature of the blade is typical of these government-issued personal weapons. CONCLUSION 136. The archaeological record is clear. At a location that corresponds to the Battle of

Cape St. Mary, the site contains the remains of a Spanish Navy warship of the time of the Mercedes and carrying Spanish Navy frigate-class armament. Mercedes was the only casualty of the battle and multiple features of the site reflect the catastrophic explosion that tore the ship apart and killed the vast majority of those on board. 137. The specie at the site, the copper and tin ingots and the culebrinas match

documented contents of Mercedes. These multiple sources of consistent evidence overlap and combine to confirm that the site can only be Mercedes.

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ANNEX 1 TO EXHIBIT D (Delgado Declaration)

ANNEX 2 TO EXHIBIT D (Delgado Declaration)

ANNEX 3 TO EXHIBIT D (Delgado Declaration)