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

Filing 138

RESPONSE to motion re 131 MOTION to dismiss Amended Complaint or for summary judgment filed by Odyssey Marine Exploration, Inc.. (Attachments: # 1 Appendix Index of Exhibits to Odyssey's Response to Spain's Motion, # 2 Exhibit A-1 Kingsley Part 1, # 3 Exhibit A-2 Kingsley Part 2, Annex 1, # 4 Exhibit A-2 Kingsley Part 2, Annex 2, # 5 Exhibit A-2 Kingsley Part 2, Annex 3, # 6 Exhibit A-3 Kingsley Part 3, Annex 4, # 7 Exhibit A-3 Kingsley Part 3, Annex 5, # 8 Exhibit A-3 Kingsley Part 3, Annex 6, # 9 Exhibit A-4 Kingsley Part 4, Annex 7, # 10 Exhibit A-5 Kingsley Part 5, Annex 8, # 11 Exhibit A-4 Kingsley Part 4, Annex 9, # 12 Exhibit A-5 Kingsley Part 5, Annex 10.1-10.2, # 13 Exhibit A-5 Kingsley Part 5, Annex 10.3-10.6, # 14 Exhibit A-5 Kingsley Part 5, Annex 11, # 15 Exhibit A-6 Kingsley Part 6, Annex 12 to 13.1, # 16 Exhibit A-7 Kingsley Part 7, Annex 13.2 to 13.3, # 17 Exhibit A-8 Kingsley Part 8, Annex 13.4 to 13.7, # 18 Exhibit A-9 Kingsley Part 9, Annex 14, # 19 Exhibit A-10 Kingsley Part 10, Annex 15, # 20 Exhibit A-11 Kingsley Part 11, Annex 16, # 21 Exhibit A-11 Kingsley Part 11, Annex 17, # 22 Exhibit A-11 Kingsley Part 11, Annex 18, # 23 Exhibit A-12 Kingsley Part 12, Annex 19, # 24 Exhibit A-12 Kingsley Part 12, Annex 20, # 25 Exhibit a-13 Kingsley Part 13, Anex 21, # 26 Exhibit A-13 Kingsley Part 13, Annex 22, # 27 Exhibit B Sinclair, # 28 Exhibit C Etchevers, # 29 Exhibit D Stemm, # 30 Exhibit E-1 Carlisle Part 1, # 31 Exhibit E-2 Carlisle Part 2, Annex 1, # 32 Exhibit E-2 Carlisle Part 2, Annex 2, # 33 Exhibit E2- Carlisle Part 2, Annex 3, # 34 Exhibit E-2 Carlisle Part 2, Annex 4, # 35 Exhibit E-2 Carlisle Part 2, Annex 5, # 36 Exhibit E-2 Carlisle Part 2, Annex 6, # 37 Exhibit E-2 Carlisle Part 2, Annex 7, # 38 Exhibit E-2 Carlisle Part 2, Annex 8, # 39 Exhibit E-2 Carlisle Part 2, Annex 9, # 40 Exhibit E-3 Carlisle Part 3, Annex 10, # 41 Exhibit E-3 Carlisle Part 3, Annex 11, # 42 Exhibit E-3 Carlisle Part 3, Annex 12, # 43 Exhibit E-3 Carlisle Part 3, Annex 13, # 44 Exhibit E-3 Carlisle Part 3, Annex 14, # 45 Exhibit E-3 Carlisle Part 3, Annex 15, # 46 Exhibit E-3 Carlisle Part 3, Annex 16, # 47 Exhibit E-3 Carlisle Part 3, Annex 17, # 48 Exhibit Ej-3 Carlisle Part 3, Annex 18, # 49 Exhibit e-3 Carlisle Part 3, Annex 19, # 50 Exhibit E-3 Carlisle Part 3, Annex 20, # 51 Exhibit E-4 Carlisle Part 4, Annex 21, # 52 Exhibit E-4 Carlisle Part 4, Annex 22, # 53 Exhibit E-5 Carlisle Part 5, Annex 23, # 54 Exhibit E-5 Carlisle Part 5, Annex 24, # 55 Exhibit E-5 Carlisle Part 5, Annex 25, # 56 Exhibit E-6 Carlisle Part 6, Annex 26, # 57 Exhibit E-6 Carlisle Part 6, Annex 27, # 58 Exhibit E-7 Carlisle Part 7, Annex 28, # 59 Exhibit E-8 Carlisle Part 8, Annex 29, # 60 Exhibit E-9 Carlisle Part 9, Annex 30, # 61 Exhibit E-9 Carlisle Part 9, Annex 31, # 62 Exhibit E-10 Carlisle Part 10, Annex 32, # 63 Exhibit F-1 Flayhart, Part 1, # 64 Exhibit F-2 Flayhart Part 2, Annex 1, # 65 Exhibit F-2 Flayhart Part 2, Annex 2, # 66 Exhibit F-2 Flayhart Part 2, Annex 3, # 67 Exhibit F-2 Flayhart Part 2, Annex 4, # 68 Exhibit F-2 Flayhart Part 2, Annex 5, # 69 Exhibit F-2 Flayhart Part 2, Annex 6, # 70 Exhibit F-3 Flayhart Part 3, Annex 7, # 71 Exhibit F-3 Flayhart Part 3, Annex 8, # 72 Exhibit F-3 Flayhart Part 3, Annex 9, # 73 Exhibit F-3 Flayhart Part 3, Annex 10, # 74 Exhibit F-3 Flayhart Part 3, Annex 11, # 75 Exhibit F-4 Flayhart Part 4, Annex 12, # 76 Exhibit F-4 Flayhart Part 4, Annex 13, # 77 Exhibit F-4 Flayhart Part 4, Annex 14, # 78 Exhibit F-4 Flayhart Part 4, Annex 15, # 79 Exhibit F-4 Flayhart Part 4, Annex 16, # 80 Exhibit F-4 flayhart Part 4, Annex 17, # 81 Exhibit F-5 flayhart Part 5, Annex 18, # 82 Exhibit F-5 Flayhart Part 5, Annex 19, # 83 Exhibit F-5 Flayhart Part 5, Annex 20, # 84 Exhibit F-5 Flayhart Part 5, Annex 21, # 85 Exhibit F-5 Flayhart Part 5, Annex 22, # 86 Exhibit F-5 Flayhart Part 5, Annex 23, # 87 Exhibit F-5 Flayhart Part 5, Annex 24, # 88 Exhibit F-5 Flayhart Part 5, Annex 25, # 89 Exhibit G Goni Etchevers and Fuentes Camacho, # 90 Exhibit H Tedesco, # 91 Exhibit I Tsokos, # 92 Exhibit J Amrhein)(Von Spiegelfeld, Allen)

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Annex 10.3 Copyright 2007 Odyssey Marine Exploration May not be reprinted without written permission of Odyssey Marine Exploration Cannon catalogued and drawn by Rudi Roth: http://www.cannons.ch/verkaufe.htm Annex 10.4 Copyright 2007 Odyssey Marine Exploration May not be reprinted without written permission of Odyssey Marine Exploration Annex 10.5 Copyright 2007 Odyssey Marine Exploration May not be reprinted without written permission of Odyssey Marine Exploration doi:lO. 1006/ijna.2000.0285 The International Journal of Nautical Archaeology (2000) 29.1: 3-42 Excavation versus sustainability in situ: a conclusion on 25 years of archaeological investigations at Goose Rock, a designated historic wreck-site at the Needles, Isle of Wight, England David J. Tomalin 4 East Appleford Cottages, Bleakdown, Rookley, Isle of Wight PO38 3LA, UK Paul Simpson Isle of Wight County Museum Service, Guildhall, Newport, Isle of Wight PO30 ITY, UK John M. Bingeman 5 Rumbolds Close, Chichester, W. Sussex PO19 ZJJ, UK Assurance, a British warship of 44 guns, was lost on the Needles of Wight, UK, in 1753. Pomone, a British 5th rate 38-gun frigate of the Leda class, followed in 1811. Designated a `protected wreck' in 1975 this multi-period site was investigated under a UK Government licence. Despite her total disintegration, Pomone left artefact scatters attesting to her size, character, resting position and evidence of her cabin plan. This archaeological evidence is compared with two surviving sister ships, and the presumption of incomprehensible `scrambling' on Muckelroy Class 5 wreck sites is robustly challenged. The Iicencee reviews the organization and methodology of 25 years of licenced activity on this site and concludes that the UK policy of promoting invasive investigation of historic shipwrecks cannot be readily reconciled with the principles of sustainability which are now embodied in European Agenda 21. 0 2000 The Nautical Archaeology Society Key words; protected wreck, sustainability, Isle of Wight, European cultural heritage, Agenda 21, coastal management. Introduction or seafarers, the western approach to the historic naval port of Portsmouth is impeded by the Isle of Wight. This island has imposed upon all mariners a choice between an off-shore course in the open waters of the English Channel or a near-shore route which allows craft to approach through the Solent seaway (Fig. 1). The off-shore route takes vessels south of Wight where navigators must stay well clear of the island's dangerous south-western coast as well as the submerged rocks protruding 1.5 km from its eastern tip at Bembridge Ledge. The inner course offers sheltered waters in the lee of the island but in choosing this route navigators must evade three particular hazards. The first danger lies at the Needles, where a 1057-24 l4/00/010003+40 $35.00/0 series of chalk stacks protrude above an ancient wave-cut platform (Fig. la). Passing north of these rocks, seafarers must then avoid some treacherous shifting shoals known as the Shingles (Fig. lb). Once clear of both of these hazards there are powerful and turbulent currents to be overcome in the narrow passage confined by the substantial shingle spit which protrudes from the mainland shore at Hurst (Fig. lc). The Needles are today a line of three off-shore stacks projecting westwards from a high chalk promontory. Three hundred years ago they numbered five. Central within the group was the slender `Needle Rock', sometimes known also as `Lot's Wife'. This stack fell in 1764. The most westerly upstanding rock is Lighthouse Rock, modified in the mid-19th century to accommodate 0 2000 The Nautical Archaeology Society Annex 10.6 Copyright 2007 Odyssey Marine Exploration May not be reprinted without written permission of Odyssey Marine Exploration NAUTICAL ARCHAEOLOGY, 29.1 Figure 8. Pomone's stamped 32 oz copper sheathing dated `Dec[ember] 1804'. (Photo: Peter Hales) Figure 7. Dated bed-plate of a 32-pounder carronade made at the Clyde Ironworks, a feeder to the Carron Company of Falkirk, Scotland. (Photo: Peter Hales) been armed with 32-pounder carronades. These weapons were first developed during the 1770s by the Carron Company of Falkirk, Scotland, and they were extensively deployed on the fast Leda-class frigates of the early 19th century (Elvin, 1985). After their removal and conservation, it was found that the carronades from Goose Rock bore helpful inscriptions, attesting manufacture in the Clyde foundry of Scotland and the Henckell Works at Wandsworth, London (Fig. 7). Inscriptions on the base-plates of the guns read, respectively, `32Pr Clyde 1803 no 1696' and ` H & Cu' (Bingeman, 1979). The dated ordnance piece from the Clyde works offered a terminus post yuern for the arming or re-arming of the ship. The dates of 1802 for the pulley wheels and 1803 for the carronade accorded very well with evidence acquired from copper-sheathing from the ship's hull. Fragments of detached copper sheets were found to be liberally marked with the English broad-arrow while some also bore the initials `MR' signifying manufacture at the Mines Royal Company of Neath, South Wales. These were suffixed with the numerals `28' or `32' denoting the weight in ounces per square foot for standard 8 sheets. Sheets of 32 oz quality would usually be used for the bow area while 28 oz sheets would be applied to the ship's sides (Knight, 1973). Particularly revealing was the date-stamp `v C DEC 1804' (Fig. 8); this provided a very strong suggestion that Chatham shipwrights had fitted or approved the sheets during or shortly after the close of the year 1804 (Bingeman, 1979). The coin evidence While the guns and the copper sheathing hinted at a date for the construction or commissioning of the Goose Rock ship, without documentary evidence there remained to be resolved the date of the ship's loss. When the Spanish-American coins were examined by Dr Edward Besly of the British Museum a few coins of later date came to light (Appendix 1). These intimated that the wrecking had occurred no earlier than 1809. The evidence rested on an 8-real piece of that year, struck in Mexico City, together with two other SpanishAmerican coins of this denomination, struck in the Mexico and Lima mints during 1808. A further coin of this type post-dated 1772 and another had been struck in 1797. The presence of Maltese and Sicilian coins suggested that the ship may have been voyaging in the Mediterranean, a location where the circulation of Spanish-American silver dollars or `specie' was common. Given that the youngest Mexican dollar would need the better part of a year to travel from its mint to the

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