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 5 TO EXHIBIT A Catalogue of iron and bronze cannon on the Black Swan site. DR. SEAN A. KINGSLEY Catalogue of Iron and Bronze Cannon from Odyssey Marine Exploration's Black Swan Site Sean Kingsley This annex catalogues all 18 cannon on the Black Swan site descriptively and illustratively. In the case of the iron guns, the objective is to highlight the extremely poor level of preservation of the most diagnostic metallic material present on the seabed and to demonstrate that they are oriented in random patterns that does not reflect the existence of a structured shipwreck on the seabed. All of the iron cannon are extremely corroded, forming concretions that predominantly penetrate downwards into the mud substrate to form corrosion pedestals. Without the recovery of a concretion, understanding the precise dynamics involved in their creation will remain impossible. However, it is visibly clear that any attempt to define the type, date or nationality of these iron guns in the absence of any inscriptions is an archaeological impossibility. This goal is hard enough for guns whose concretions preserve iron content intact, but in the present case, where the metal's surfaces and thickness is heavily deteriorated, such an initiative would be completely hopeless: unless stated otherwise below, the defining typological characteristics of the form of the muzzle, cascable, trunnions and reinforces are not even visible, even as concretions, but have completely corroded away. Given the fragile condition of these artifacts, they would not survive recovery to the surface for study or x-ray analysis. Delgado's attempt to demonstrate typological affinities between the Black Swan iron cannon and those in Spanish collections is an example of deliberate deception. The measurements provided in this document are calibrated from the relative dimensions of the copper ingots, recovery of which has demonstrated standard lengths of 60 centimeters. While this method of measurement is far from ideal, under the current circumstances it is the most accurate means available. Measurement may be considered accurate to the nearest 10 centimeters. Abbreviations: m (meters;) cm (centimetres); L. (length); W. (width). The grid numbers supplied after the cannon numbers are the Black Swan grid nos. (Annex 1), which permit the contextual locations of the guns to be referenced geospatially across the site. Entries accompanied by (?) are not clearly identifiable as cannon. Though listed here for the sake of accuracy, they are not quantified in this report's gun count. Only where the parallel, straight sides of cannon are visible, or muzzles, cascables or trunnions, are examples listed as definite guns. Annex 5 Copyright 2007 Odyssey Marine Exploration May not be reprinted without written permission of Odyssey Marine Exploration 1 Cannon No. C1 C3 C4 C5 C6 C7 C8 C10 C12 C14 C15 C16 C17 C18 C19 C20 C21 C22 Medium Iron Iron Iron Iron Iron Iron Iron Iron Iron Iron Iron Iron Iron Bronze Bronze Bronze Bronze Bronze Grid No. J11 L18 M9 M33 R34 Q24 T2324/U24 T14 Y21 AB33 AC27 AE43 AG39 V21 U44 AG42 AH38 ---- Length 1.1 2.5 1.9 1.9 1.4 2.5 1.7 2.4 --2.7 2.2 --2.65 0.65 0.7 1.1 ----- Muzzle Orientation s-w Gun Orientation e-w nw-se s w s-e n-w n-w s-w e-w s-w w n-w s-e s-e n-w s-w --- Table 1. Summary of cannon on the Black Swan site. Catalogue 1. Iron Cannon Catalogue Cannon C1 Grid No. J11; Fig. 1 Oriented with possible muzzle facing south-west. North-eastern quarter covered by light sediment and apparently extensively corroded. Visible L. 1.1m. Cannon C2 (?) Grid No. L34; Fig. 2 Possible iron gun, heavily corroded; no anatomical shape survives. Oriented on an east/west axis. Visible iron L. 1.7m; concretion platform L. 2.3m. Cannon C3 Grid No. L18; Fig. 3 Iron gun; no distinct shape survives. Oriented east/west. Visible iron L. 2.5m; massive concretion platform L. 3.1m and 1m wide. Additional rust-coloured leaching below this platform. Cannon C4 Grid No. M9; Fig. 4 Probable iron cannon, very heavily corroded concretion. Oriented northwest-southeast. Concretion L. 1.9m. Sponge growth on north-east side. Dense corrosion pedestal at south. 2 Cannon C5 Grid No. M33; Fig. 5 Iron cannon with fishing net trapped around the southern end, lying on a flat, horizontal plane. Probable muzzle oriented southward. 1 trunnion visible on western flank. Northern half of cannon covered by light sediment, no less than 10cm deep. Typical kind of concretion found on marine sites; no leach pedestal. Visible L. 1.9m. Cannon C6 Grid No. R34; Fig. 6 Broken iron gun, muzzle oriented west. Preserved along three-quarters of its length, then broken. Normal iron concretion, no corrosion pedestal, but two corroded strips of leaching off the eastern end of gun. L. 1.4m. Cannon C7 Grid No. Q24; Fig. 7 Iron gun with light concretion and no pedestal. Muzzle oriented south-east. Iron leaching and chunks broken off to the north. Associated with dense area of probable `rigging' (grid no. R24) immediately to the southeast, covering approximately 3.6 x 3.7m. Gun L. 2.5m. Dense sponge growth affixed to the mass, copper sheathing/tubing to north, 0.7m long. Possible one-armed iron anchor on north edge of rigging, directly facing southern end of cannon C7, either one-armed or with a single arm preserved on western flank and second one broken away. Anchor shank oriented southeast to northwest; arm oriented southwest. Cannon C8 Grid No. T23-24/U24; Fig. 8 7.2m south of probable rigging concretion associated with cannon C7 an iron gun retains its original shape within a thin concretion. The muzzle faces northwest. Contrary to Delgado (point 112, annex 9.35), this iron object is not an anchor because it narrows from south to north. Anchor shanks are straight-sided. Two iron rings are concreted to the sides of the gun: one on eastern side of the cascable, the other three-quarters down, towards the muzzle, on the western flank. L. 1.7m. Two sets of rope oriented east/west, spaced 0.6m apart, run at right-angles to C8 along its southern half. The northern rope is 1.8m long and touches C8, terminating with a loop c. 0.3m long and 0.25m wide. Mass of undeterminable probable rigging concretion to west. Traces of two other rope sections also oriented east/west and running directly parallel to the material associated with C8 located 4.8m northwest of the ring-looped northern rope element. Cannon C9 (?) Grid No. S27; Fig. 9 Corroded remains of two possible parallel iron gun platforms. Oriented southwestnortheast. Ring encrusted to north-western example, which has two distinct leach platforms around each end, but is unlikely to be an anchor because the object narrows marginally from west to east, perhaps an indication that the muzzle lies to the east (if the anatomy has not been distorted by iron corrosion). However, neither a muzzle, cascable swelling or trunnions are visible. The southern concretion has split into three lumps with 3 leach platform around the mass. Though perhaps originally an iron cannon, the anatomy is so badly decomposed that no identification can be secured. Northern gun (C9) L. 1.7m; concretion L. 2.2m. Leach platform W. 1.0 x 0.7m. Two copper ingots, one tin ingot, coin clump and possible copper spike to northwest; miscellaneous iron tubular object to north; coin clump to south. Cannon C10 Grid No. T14; Fig. 10 Iron gun with lead pipe on western side. Muzzle faces northwest. Typical marine concretion along northern half, but dense corrosion pedestal across southern half. Cannon L. 2.4m; total L. with pedestal 2.7m. Lead pipe 1.1m long, extends southwest-northeast with possible junction to northeast. Cannon C11 (?) Grid No. W40; Fig. 11 Very heavily decomposed iron gun on northeast-southwest axis, 2.3m long (preserved length). Heavy corrosion pedestal, with southern end fully decomposed and broken off. Tin ingot to northeast. Cannon C12-C13 Grid No. Y21; Fig. 12 Two possible iron cannon with both ends lying under shallow sediment. Muzzles oriented in different axes: one to northeast and other to southwest. Concretion platform on east of to southern cannon. Total L. of both guns 2.4m. Southern gun (C12) identification positive; northern example tentative. Cannon C14 Grid No. AB33; Fig. 13 Iron gun running east-west with a copper and tin ingot overlying it. Dense leach platform at east, narrowing towards the west. Visible iron 2.7m long; total L. of platform 3.4m. Dense area of coin clumps, ingots and probable rigging to north, including a second possible iron cannon, so heavily corroded that no positive identification is possible. Cannon C15 Grid No. AC27; Fig. 14 Iron gun with muzzle facing southwest. Despite heavy corrosion, both muzzle, cascable and western trunnion can be discerned. Gun L. 2.2m long. Concretion stain 2.7m long. Gun W. midway along 30cm. Maximum W. of concretion 1m. The concretion is visibly thicker at the northeast where it is in proximity to a copper ingot. Cannon C16 Grid No. AE43; Fig. 15 Very heavily corroded iron gun with probable muzzle facing just north of westward. Gun between centre and muzzle anatomy visible; lower half towards cascable completely decomposed. Sponge overgrowth to south. Total corrosion pedestal L. 3.0m. 4 Cannon C17 Grid No. AG39; Fig. 16 Iron gun, intact concretion. Muzzle faces northwest. Narrow corrosion pedestal, mainly at northern and southern flanks. Gun L. 2.65cm; pedestal L. 3.0m. 2. Bronze Cannon Catalogue Cannon C18 Grid No. V21; Fig. 17 Intact bronze gun, muzzle facing southeast. Impact crater to southeast. Cascable broken off (antique cannon). L. 0.65m. Cannon C19 Grid No. U44; Figs. 18-19 Intact bronze gun, muzzle facing southeast. No context/isolated. L. 0.7m. Cannon C20 Grid No. AG42; Fig. 20 Bronze cannon. Muzzle oriented northwest, southern half covered by sediment. L. 1.1m. Cannon C21 Grid No. AH38; Figs. 21-23 Bronze antique culverin, muzzle facing south-west. Only visible along half of length. Dolphins at north. Visible L. 2.5m. Cannon C22 No grid no. Fig. 24 Bronze cannon protruding vertically out of the seabed, muzzle upwards. Embedded for one-quarters of its length in the clay substrate. 5 Fig. 1. Black Swan Cannon C1 Fig. 2. Black Swan Cannon C2 6 Fig. 3. Black Swan Cannon C3 Fig. 4. Black Swan Cannon C4 7 Fig. 5. Black Swan Cannon C5 Fig. 6. Black Swan Cannon C6 8 Fig. 7. Black Swan Cannon C7 9 Fig. 8. Black Swan Cannon C8 Fig. 9. Black Swan Cannon C9 10 Fig. 10. Black Swan Cannon C10 11 Fig. 11. Black Swan Cannon C11 12 Fig. 12. Black Swan Cannon C12-C13 13 Fig. 13. Black Swan Cannon C14 14 Fig. 14. Black Swan Cannon C15 Fig. 15. Black Swan Cannon C16 15 Figs. 16a-16b. Black Swan Cannon C17 16 Fig. 17. Black Swan Cannon C18 17 Fig. 18. Black Swan Cannon C19 Fig. 19. Detail of Black Swan Cannon C19 18 Fig. 20. Black Swan Cannon C20 19 Figs. 21-22. General and close-up views of Black Swan Cannon C21 20 Fig. 23. Detail of dolphin handles on Black Swan Cannon C21 Fig. 24. Black Swan Cannon C22 21

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