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 23

WILLIAM HENRY FLAYHART III

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August 29, 2008

The British division was comprised of the following forces, as we were informed and observed for ourselves: Frigates Infatigable. Lively... Anfión.... Medusa... CAPTAINS Captain Moore, Chief Hammond... Lutton... Gore... Resources 330 280 250 250 Cannons 26 of 24 (lbs.) 28 of 18(lbs.) 26 of 18(lbs.) 26 of 18(lbs.) Howitzer 4 of 12(lbs.) 4 of 9(lbs.) 2 of 9(lbs.) 4 of 9(lbs.) Carronades 16 of 42(lbs.) 18 of 32(lbs.) 8 of 32(lbs.) 12 of 32(lbs.)

There were fifty eight British men that came to command this frigate, under the command of first Lieutenant of the ship Infatigable, Gore, with three Marine Guards, two Pilots and ten soldiers, with their corresponding Commander, Lieutenant Carlos Flul, and we should not omit that, after they came aboard, they hoisted the British flag over the Spanish one, which we never stopped missing; this decision took place only shortly after the detention of the frigates of which we were reassured and which was the only disputed item; but for now we did not think any reprisal was appropriate. They also picked up the rifles and sabers which they used to arm their navy throughout the entire night; helping were also forty men from our crew that were left there, with some cargo Officials and Foreman to help them as well, etc. By the second estimate, it wasn't until six fifteen in the morning that the Monchique mountain range were discovered and marked at 7 degrees North 40 West, corrected from variation, as it was mentioned before; we hadn't made any other notes... P. 394 ...from which we could have counted or guessed an estimate, after the battle...

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August 29, 2008

On the 11Pth, in the morning, the British Commodore came to visit our General; and
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among the many presents and affectionate expressions and offers of attention that he used to express himself, his disagreement was very evident and he referred it as a reckless action and a brutality (cela a été une bêtise) that they hoisted the British flag over the Spanish one; therefore giving our General a great satisfaction, who politely and timely thanked the Commodore, and explained his decision about an inconsequential fact, regarding the detention of the frigates, which were not taken prisoners. The British Commodore also mentioned his sadness on having been commissioned for such an expedition and such orders at a time of peace, knowing very well that he wouldn't be able to carry out such orders between two battleships unless he used force and entered combat; and wishing to avoid any bloodshed and wanting to act as a man of honor, he had explicitly ordered that the fire only dismantle and render the ship useless; the Commodore also expressed to our Major his tender and sincere sadness for the loss of the Mercedes, and in it all his family, ect. The Commodore also added that he had recognized several Spanish vessels and that he had let them pass by freely, even though some were suspect, and as he expressed himself, with great treasure, like one that was coming from Veracruz, and a postal ship from Buenos Aires, which, according to its signs, was the Batidor, which was commanded by Lieutenant Julián Velarde, who, not being able to access Coruña maybe because of the north east winds, had to arrive in Cádiz because he was recognized with that address; and the Commodore's intentions were no less than to help us understand that war was not declared, and that he did not have any orders regarding this matter besides the orders that he received in the strictest confidence and by sealed letter that he was directed to open at sea, regarding the detention of these four frigates, and their escort to ports in... P. 395 ...Great Britain; maybe the British Ministry considered that they carried a great treasure, even bigger than the one they actually carried, to the aid of their great enemy Bonaparte, to whom they had great disdain, etc.

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August 29, 2008

During the days after the combat they also recognized, according to what Captain Moore himself told us, another two Spanish vessels, one ship that he thought of as a battleship and a brigantine. The British didn't completely finish the rebuilding of the frigate until the 12Pth, and from
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that day on they made a sail out of three topsails with two or three curls. And from the 13Pth, after
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they had favorable winds from the third quadrant, they followed the return of the first with more or less open direction, according to the maps and charts, depending on the situation. The Medea, from the 5Pth day of the month, took on more water than what it was
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accustomed to, and it accumulated up to thirty six inches a day and the Clara even more because it reached up to twenty three inches an hour, due to the many bullet holes that were at water level. The morning of the 16Pth, we went on board of the Infatigable to pay a visit to the
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Commodore from our General, returning his many presents and affections, and we gave him a report that he asked for regarding the wealth and fruits that the frigates carried, making a distinction between what belonged to the king, to national trade and individuals, to the maritime company, and even what was registered and written under the name Caja de Soldadas, like paid and saved salaries by the staff officers, officials, marine troops and the compliments of a crew according to the bylaws, and in agreement with our General. The evening of the 18Pth, the Infatigable and the Anfión, were on a nearly northward
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course trying to reach land; and when they touched ground with the lead line at fifty Fathoms, they switched course towards East-South-East until daylight... P. 396 ...when they changed course towards North-East- ¼ North, and before seven Cape Lezard became visible, and soon after the entire coastline, although it was cloudy, the inlet and port of Falmouth. At ten o'clock two brigantines were on route carrying British flags; one of them was a war vessel, a coastguard, and the other one for coasting trade. At around twelve, continuing towards Northeast, corrected, and with a pilot on board already, we went through the meridian by twenty two Fathoms deep from the watchtower called Eddistone, where there is a very tall tower,