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)

EXHIBIT F-3

DR. WILLIAM H. FLAYHART, III PART 3 Annex 7 to 11

ANNEX 7

WILLIAM HENRY FLAYHART III

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September 5, 2008

The Trafalgar Campaign
(1804-1805)

Documental Corpus Preserved in the Spanish Archives
Volume I
In Honor of the British, French, and Spanish Sailors that Battled at Trafalgar

Jose Ignacio Gonzalez-Aller Hierro

Minister of Defense Spanish Navy

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September 5, 2008

84 London, December 10, 1804 OFFICIAL LETTER: Jose de Anduaga, Ambassador of Spain in London, to Pedro Cevallos. Meeting held with Prime Minister William Pitt to prevent war. CATALOG NUMBER: AHN, Estado, leg. 5458 ancient (original, signature); BRAH, Col. JPG, ms. 11/8303 (copy) Number 160. My dearest sir: In a matter of four days, I have received the Viceroy's letters dated October 18, 20, 22, 23 and 26 and November 4, 7, 12 and 13, all of them via Lisbon. In those letters it is explained the letters from Don Julian de Araujo y Don Marcos de Navia, the first which arrived the day before last and the second one which will arrive tomorrow, after a long and painful trip. Becoming aware of the content of all the letters, and having neutrality with this world power as a main point under critical circumstances, it seems convenient (especially after Lord Harrowby, was indisposed, after falling from a staircase) to have a private it meeting with Mr. Pitt... P. 246 ... I asked for the meeting the day before yesterday and, we had the meeting today; we just finished meeting and I'm sending the results to the Viceroy, in case it arrives on time so it can go in a neutral vessel that is supposed to leave to San Sebastian this afternoon. My objective was to let Mr. Pitt know about what the Viceroy told me in his letter of November 7th about what happened with the frigates, Medea, Clara, Mercedes and Fama, about the rushed way in which the person in charge of the negotiations Mr. Feere, has broken them with Viceroy about the neutrality while requesting papers in order to leave, and explore at the same time the dispositions of this Ministry on that day. I have expressed to Mr. Pitt when the Viceroy warned me, and I have asked him if he knew when the British mail arrived in Madrid that left on October 21, with the papers that talked about what happened to those four frigates, although I had received letters from you dated November 13, it did not mention the letter

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September 5, 2008

although it said it had arrived on the 9th, there were no letters from Mr. Frere after the 8th, just as I didn't know of the departure of Mr. Frere from Madrid, but from a letter from the General Counsel Mr. Hunter, according to whom he had left on the 14th. I have started talking with Mr. Pitt about the negotiations we have continued with this Government about our neutral position, and how we have been sincere, frank and how we have acted since the moment France had asked us for the help. I have read the 3 papers that I gave to Lord Hawkesbury on August 29 and September 1st of last year about the main principles under which Spain believes we could maintain neutrality, even though he says that according to him we could continue neutrality, he has said that the application that the Treaty of 1796 has left us with the increase of help, he cannot reprove that the prior Minister had not only recognized the Treaty only as defensive, while he wasn't sure that the help was limited. I have asked Lord Hawkesbury to give the reasons why those papers considered the treaty as defensive in case Spain acted as help, and in case I could not fulfill the objectives that they had, they could propose what the Ministry wanted to limit the help and I would communicate to my Court through mail so it can be done in agreement with France, what could at least be verified because we had the same reasons to respect as with England, and it should guarantee our neutrality, but without the British Ministry accessing those documents, it wasn't Spain's fault that they have not looked at the help in a way that it left no doubt. He replied that even if everything would have been fixed then, the Ministry would not have been able to agree in recognizing our neutrality, not communicating to Spain the terms that were agreed on with France for that to occur. I have reminded him since the beginning and with an answer given to Mr. Frere on December 16th of last year, the Viceroy had declared that Spain had stipulated with France the equivalent of the help in cash, what had been repeated constantly; that the demand showed lack of trust towards Spain. In reference to the neutrality is concerned he had observed major scrupulosity and satisfied the wishes of the English Government that he wasn't sure that Spain had given the equivalent for the help nor he would trust the amount that was given for the imports, therefore, to demand this circumstance was to humiliated Spain, and therefore it should not shock that the Ministry continued to repeat the same declaration that was conformed with its dignity and was enough to calm it down. I was told that he surely did not believe that an act of confidence should humiliate Spain when it was about England attempting to secure itself, which

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was in danger if Spain supplied France with such exorbitant amounts, which was worse than supplying vessels since those could be attacked, but had been secret amounts of money they couldn't be cut nor minimized by England. That the Ministry had always wished that Spain had told them the truth about that point, but there was no way to figure that out, and although after the treaty with France there was a contract, the content of it was not revealed to Mr. Frere; which he had given this Ministry more and more suspicions about its declarations and it would harm England. Finally, Mr. Frere was made to understand that the benefits were temporary and until Spain could work in accordance with it views and interests. Since the topic of the benefits is difficult to reconcile considering the inconsistencies on both sides that choose not to give way, I have tried to persuade Mr. Pitt by other means, that is, making him see that even if Spain had excessively helped France, it was impossible to pay it all because of the great delay of the Hacienda, with the great expenses because of the epidemic, the short supply of grains, etc. and that not having enough for itself, they had less for France; that this Ministry should know that if there was an excess it couldn't have been involuntary, and that England would do a huge injustice by punishing Spain for something that it couldn't remedy, that instead of oppressing it should help it to ... P. 247 ... support itself, since France would gain plenty from the decline of Spain, and if today France prevails, it would be later also; and that England would miss what they had proclaimed on the declaration of His Majesty of England when they recalled their Ambassador from Paris last year, on which occasion and after had said that it was his intention to get the independence of any State that was under the ruler of France. Finally I had said that Spain by itself and by the way it had conducted itself with England should be treated well, and had the right to be treated well for the great benefits it was trying to get to England with its lawful and clandestine commerce, and even with the inclination that its inhabitants had towards this commerce, inclination that will drown if we declare war against each other, and that would become a constant and sincere support for the French and a promptness to be on a common cause against England. I also let him know of the misunderstanding of the use of millions that arrive here from the Americas, letting him know that out of the four detained frigates, only one was for the King, that the others were private, and even though is a million, it has already spent, just like it can be verified in

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London due to the many business man that intervene in the delivery of silver that we do through Amsterdam, in other commerce and here for the settlement of our balance. All this reflecting and others that I have used to encourage this Prime Minister to take particular interest in favor of Spain, he has heard them carefully, and I believe it had left a temporary impression, but he always came to the same conclusion, that Spain insisted on not wanting to explain the benefits in a clear and categorical way, putting this Ministry in the necessity to act in the terms they do. I have told him that Mr. Frere has not made any conclusive and clear requests, and therefore we could expect the negotiations to be broken the way they were, especially not having considered this important point nor forming a condition such as the armament, in which Mr. Frere had provided points to which there was a positive and determined response. I added that the expression armament in which Mr. Frere insisted, it was according to the writing something unachievable and embarrassing, that if some other Berber regency wanted to insult us, they could do it with impunity, but when it comes to the rest, this Government can be sure that they should not have to complain about arming, as much for our Goodwill as for our own interest. Although my observation was very obvious, Mr. Pitt has explained to me that if Spain was neutral and it wouldn't have any ties with France, it could convene us in some arming, but offering England neutrality even though Spain was attached to France as a helper, England has the right and necessity of that security and condition that they will not armed. Talking to me about the subject of the frigates and the break of the negotiations by Mr. Frere, he told Mr. Pitt that the terms that the Viceroy explained to me as the Kings orders, it could be seen up to what point was His Majesty willing to find peace in spite of the indignation it has caused to his royal mood this situation with the frigates, His Majesty suspended every procedure and asked for an explanation of the Ministry's conduct, as well as asking Mr. Frere for their passports to leave Madrid. According to this he had told me that he had not yet received the dispatch of Mr. Frere, he could not express to me anything until they had arrived, while when it came to the prior matter we were instructed of the official documents that had been passed in Madrid until November 7th confessing that Mr. Frere had the orders to ask for an explanation about the armament and benefits paid to France and leave if they were not satisfactory, and even though he was telling me all this in confidentiality, he could stop but add that unless I had