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)

ANNEX 3

WILLIAM HENRY FLAYHART III

Rules that maritime Mail Service for the Royal Armada must meet, according to that determined by His Majesty.

I.
As it is convenient and still necessary that the commanders of the expeditions who will take public correspondence to their overseas destinations remain a part of the Ministry of the State, the Ministry will continue to be in charge of this function of dispatching these expeditions, with the determination of the number of dispatches being distinctive, and setting the periods of time for their departures, as well as indicating the principal locations where the boxes must go in America, and connecting them with the corresponding subdivision.

2.
To this end, the Ministry of the State will request the vessels that it needs from the Navy one year in advance, and through the Ministry of the Navy, it will have the number and kinds of vessels that it requests at its disposition, taking them from the Royal Armada, armed and equipped according to her regulations and enjoying the full privileges that her employees determine. 3. As a result of the Navy's obligation to provide warships that will take the public correspondence to their corresponding overseas destinations to the Ministry of the State, the need for said Ministry to have arsenals, ships, and navy employees for this objective is concluded. Those that will now be incorporated into the Royal Armada will assume the yearly expenses brought about and will take a separate account with them, with everyone destined for this service being brought together in the Department of Ferrol. 4. The Ministry of the State will send out its orders so that the Mail Service makes deliveries, both in Spain and America, to the respective Naval Chiefs, which is to say the arsenals, ships, and Naval effects that they possess, as based on the inventory forms; the Mail Service is in charge of settling all pending accounts with its employees in the maritime service. The Ministry of the State will pass on to the Ministry of the Navy all news of the ships and the effects it is to deliver, as well as news of the areas it will verify. But until July first, at which point the Navy will not be responsible for sending Mail on its own, the Mail Service will continue dispatching it as it has until now, without any notice. 5. At the disposition of the General Captain of the Department of Ferrol, everything in La Coruņa will be handed over to the General Commander of La Coruņa;

everything shall be handled in a similar nature in Havana and in Puerto Rico. This will be verified by the Naval Commanders of Cartagena de Indias and Montevideo, if there are naval supplies or possessions in these Ports to be used by the Mail Service. 6. With respect to individuals, the Ministry of the State will send a detailed payroll of the Officers, with military ranking, who are serving in the Mail Service to the Ministry of the Navy, with their seniority expressed as well as a confidential report on their conduct, aptitude, and merits, so that they are incorporated into the Armada in their corresponding class, maintaining their salaries as if they were superiors to the rank they hold. Said Ministry will also send along news of the maritime Officers who are serving in the Mail Service and their reports, so that they are incorporated at their respective Armada ranks and their salaries should they be greater than that indicated for this. For the Crew that been serving in the Mail Service up to this point, they will be included in the general registry for this class of the Navy and will be employed according to the scale of service they fall under in the Provinces. 7. The Military Commander in La Coruņa and the Commanders of the military posts in America will carry out the functions of principal Commanders of Maritime Mail Service, and in this way have a connection to the Sub-delegate branch of the Ministry of the State, from whom they will receive orders for the service of said ships, taking into account and representing all that pertains to that service. To ensure that this happens in cases where it may be necessary to deal with the Administrators of the Mail Service, the Commanders will perform this and they will be treated with the courtesy and good accord that they are due. 8. The principal Commanders of the Mail Service will exercise sole jurisdiction over said vessels and their crews, both in military and medical, as well as in criminal and litigious matters; but the Commander in La Coruņa will only have the power to make summary reports and to impose the corresponding corrective actions for crimes that do not require their removal from the destination, since in that case and in any other serious matter, the criminals must be dealt with by the General Captain of the Department of Ferrol so that action is taken in court and the cause defined.

9.
The principal Commanders will be responsible for ensuring the preparedness of the Mail Service ships, verifying this for themselves through the means that they have available and the Commander of La Coruņa must communicate with the Commander of the Department of Ferrol when circumstances require, with the power to disembark and request the replacement of Officers of war considered in these cases. He must give the account to the Ministry of

the State, where the relevant matter will be resolved, communicating it to the Commander of the Navy, who will provide is requested.

10.
The principal Commanders will take particular care that no frauds against the Royal Treasury are committed on the Mail Service ships, with the knowledge that the Commander of any sector where this is discovered will be served with a demerit and if any omission is discovered on the part of a Commander, this will result in his removal from the post.

11.
From the establishment of this new unit of maritime Mail Service until its two year anniversary, half of these boats will be sent by Officers of the Armada, taking those that are incorporated from the Mail Service as second Officers, and the other half as Officers of the Mail Service, with second Officers; with the knowledge that the second Officers must move every year. When these first two years have passed, and from that point on, two years will be the time that the Officers who are named shall remain in the commission of the Mail Service; crews shall remain for only one.

12.
To prevent the service to the public from suffering the smallest delay, and so that it can fulfill the indicated periods of delivery in a timely manner, the next maritime Mail Service to be used must be given with one month advance notice and another must be retained for any extraordinary circumstances. In the cases where, due to stoppages or other causes, it is not easy to replace the consumption of the provisions that these boats need on a daily basis, it will assist the crews with the monetary value of the Armada's rations according to the prorated value.

13.
With the warning that the Administrators of the Mail Service have to record, on Official paper, the day and time on which the delivery of the overseas correspondence has to be verified to the principal Commanders, they will provide prior notice, either personally or through a proxy, to the Commander of the maritime Mail Service in charge, who will receive it and accompany it until it is left securely on board.

14.
The principal Commander of maritime Mail Service for La Coruņa, requesting the necessary notices from the Naval Department, and given the defeats that currently rule over their navigations, will create a new logbook from them containing illustrations that can be of service to them.

15.
The principal Commanders must take special care that the maritime Mail Service always leaves port on the most advantageous sea route; following this route, they shall receive any mercury, artillery, munitions, or another load of effects from the Royal Treasury in Europe; and in America, gold, silver and other precious metals or tobacco on their own account: these are the only loads that must be put on board.

16.
In cases where, as stated, valuables are put on board the maritime Mail Service ships on their return from the Americas, the rank of Silver Master will be given to the respective Commanders in charge, who will fulfill this role in the generally established manner.

17.
In the Naval stations in America, whose sustenance depends on those located there, they must provide the Mail Service with the necessary valuables for the ships destined for this service, with the Administrators sending along a detailed notice provided for them by the Ministry of the State, and the Navy Commanders will direct their investment fund to the Ministry of the Navy for examinations and any applicable effects.

18.
And so that there is a specific person with sufficient, demonstrable knowledge on the general Board of Directors for the Mail Service in Madrid, who treats matters or incidents related to the maritime Mail Service and its general Revenues, and for any other purposes that the Ministry of the State has at hand, it will choose, with royal approval, a Navy Official from the Supreme War Counsel to be speaker of said Board, giving notice to the Ministry of the Navy General or Official who has been chosen.

Madrid, April 6, 1802. The Prince of Peace