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

Filing 163

REPLY to response to motion re 131 MOTION to dismiss Amended Complaint or for summary judgment (Reply to Odyssey) filed by Kingdom of Spain. (Attachments: # 1 Exhibit A, # 2 Exhibit B-1, # 3 Exhibit B-2, # 4 Exhibit B-3, # 5 Exhibit B-4, # 6 Exhibit B-5, # 7 Exhibit B-6, # 8 Exhibit B-7, # 9 Exhibit C-1, # 10 Exhibit C-2, # 11 Exhibit C-3, # 12 Exhibit C-4, # 13 Exhibit C-5, # 14 Exhibit C-6, # 15 Exhibit D)(Goold, James)

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN ADMIRALTY

ODYSSEY MARINE EXPLORATION, INC., Plaintiff, v. Case No. 8:07-cv-00614-SDM-MAP THE UNIDENTIFIED SHIPWRECKED VESSEL, If any, its apparel, tackle, appurtenances and cargo located within a five mile radius of the center point coordinates provided to the Court under seal, Defendant, in rem and The Kingdom of Spain, The Republic of Peru, and Gonzalo de Aliaga (the Count of San Juan de Lurigancho), et al., Claimants. CIVIL ACTION

_______________________________________/ Reply Declaration of James P. Delgado, Ph.D 1. I have previously executed a declaration and a confidential declaration

provided to the Court as Exhibits D and E to Spain's Motion to Dismiss or for Summary Judgment in this case. I have reviewed the declarations submitted by Odyssey with its response to Spain's motion, especially those relating to the archaeological evidence (e.g., Dr. Kingsley and Mr. Sinclair) and historical documentation relating to Mercedes. In this reply declaration, I briefly review key aspects of the convergent archaeological evidence and location data which establish that the site consists of remains of Nuestra Senora de

las Mercedes ("Mercedes") I also review arguments in the Odyssey declarations to contest the certainty of the identification of the site. 2. In reviewing the Odyssey submission, I noted that Odyssey states that its

"leading hypothesis" is that the materials taken from the site "came from the Mercedes" (Odyssey Resp. p. 7). I also noted that neither Odyssey nor the declarations submitted with its reply suggest any other vessel that could account for the assemblage of Spanish naval cannon, ballast, sheathing and other structural elements, plus copper ingots, tin ingots, culverins and coins, documented for Mercedes at a site that matches the historically documented location at which Mercedes exploded and sank. Rather, the principal contention seems to be, as Odyssey states, that the evidence is "circumstantial." (Id.). 3. Identification of a historic shipwreck site is inherently a matter of

"circumstantial" evidence involving questions such as the following: Is the site at a location that corresponds to historical documentation as to where a given vessel sank? Are the remains in a condition that is consistent with the historical record concerning when and how the sinking occurred? Do the artifacts at the site correspond to the assemblage of artifacts known to have been on the vessel? As I detailed in my initial declaration, the answer to each of these questions is clearly "yes." 4. To be conservative, further tests of the evidence may also be appropriate:

Are there artifacts at the site that are inconsistent with a proposed identification of the vessel? The answer to this is "No." The vast array of artifacts identified at the site is consistent with and characteristic of the Mercedes. To be even more conservative, one may also ask: Are any other vessels known to have sunk at the site that could plausibly

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account for the assemblage of artifacts observed at the site? The answer to this is also "No." 5. As I discuss further below, the Odyssey submissions either acknowledge

outright or do not dispute that the site contains an extraordinarily distinctive collection of Spanish naval cannon, copper ingots, tin ingots, culverins and coinage that correspond to known contents of Mercedes at a site that matches contemporaneous navigation log data and other reports for Mercedes. No artifact, apart from the ubiquitous trash such as snagged modern fishing net, is identified that could not or would not have been on Mercedes. The principal contention advanced by the Sinclair and Kingsley reports appears to be that it may be premature to acknowledge that the site is Mercedes because wooden hull remains are degraded and/or disconnected and/or that not all of Mercedes' complement of cannon, provisions, stores and equipment, etc. are clearly visible on the seabed within the area covered by Odyssey's photomosaic. In this reply declaration, I address misconceptions, inconsistencies and errors contained in the Odyssey declarations as to questions such as these. 6. To briefly recapitulate, my initial declaration pointed out the convergence

of key evidence which I summarize as: · correspondence of the site location with the contemporaneous Spanish and British Navy logs and reports identifying the location at which Mercedes, the only casualty of the Battle of Cape Saint Mary, exploded and sank. the presence at that site of Spanish Navy cannon that match Mercedes' known cannon types and sizes (12 lb. and 6 lb. cannon, 3 lb. pedreros and 12 lb. obuses), plus hull sheathing and other elements distinctively characteristic of a Spanish Navy frigate of the time of Mercedes.

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the presence at the site of vessel remains, cannon and other artifacts in a pattern that is distinctly that of a vessel that was torn apart before sinking a kilometer to the seabed, coupled also with blast damage to some artifacts. the presence at the site of a large and a wide array of highly distinctive artifacts - copper ingots, tin ingots, culverins and chests of coins documented as on Mercedes. with respect to coinage, exclusively Spanish nationality, South American points of origin, and dates (1773-1804) that further point with extraordinary specificity to Mercedes.

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A.

Location Data 7. I now discuss the status of this evidence in light of the Odyssey

submissions, beginning with the location of the site. I note first that the analysis of the location of the Battle of Cape Saint Mary and Mercedes provided by the Department of History of the Spanish Navy Institute of Navy History and Culture and the correspondence of that location with the site (Spain Mem. Ex. B; Confidential de Leste Decl., Annex 3) is not disputed in the Odyssey submissions. The Sinclair report appropriately states that "extant documents place Mercedes in the area. (Odyssey Resp. Ex. C, p. 20). I also note that my analysis of the correspondence between the site location and the British commander's contemporaneous report (Spain Mem. Ex. E, Confidential Delgado Decl.) is not disputed. 8. Odyssey's submissions include contemporary navigation data that provide

specific reference points that also correspond to the previous analyses. The report by Captain Alvear on Medea (Odyssey Resp. Ex. A, Annex 22) gives a position of 36º 23' North and 7º 40' West at 6:15 a.m. before the Battle. This is highly consistent with the location analysis provided by the Institute of Naval History and Culture. (Spain Mem. Ex. B, Annex 3). The log of the British Frigate Amphion (Odyssey Resp. Ex. C, Annex

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27) reports that while awaiting the Spanish frigates, she was 8 or 9 leagues (24 - 27 nautical miles) south of Cape Saint Mary. The log of the British Flagship Indefatigable (Id.) also reports that Cape Saint Mary was 8-9 leagues to the Northeast when the signal was given to intercept the Spanish ships to the south. This tells us that the British squadron was more than 20 miles south of Portugal when they began sailing south to intercept the Spanish squadron. Indefatigable's log reports that by 8:30 a.m. the British and Spanish squadrons had joined and Indefatigable had hove to. These log entries also confirm the accuracy of Captain Moore's report to the Admiralty I used in my analysis. (Spain Mem. Ex. D, Annex 3 and Spain Mem. Ex. 3). 9. I note that the Kingsley report includes a 1984 Instituto Portugues du

Patrimonio Cultural document that refers to activities "em vista à recuperação da fragata espanola `Nuestra Señora de la Mercedes'" ­ activities with "a view to recovering" Mercedes. (Odyssey Resp. Ex. A, Annex 22.) But the coordinates for the search area proposed in this document are at 36º 57' to 36 º 59' North and 8º 09' to 8 º 12' West. This area is within about 10 miles of the Portuguese coast and cannot be reconciled with the contemporaneous British logs and Captain Moore's report to the Admiralty (Spain Mem. Ex. E, Annex 3) that they were more than 20 miles south of Cape Saint Mary, when they moved south to intercept the Spanish squadron, or with Medea's position, at 6:15 a.m. the morning of the battle. The documents submitted with the Kingsley report annex also contain nothing to show that Mercedes was actually found in the 1984 area. B. Spanish Warship Artifacts 10. As I noted in my initial declaration, the cannon that are exposed on the

seabed correspond to the types and sizes of weapons (12 pdrs., 6 pdrs., 3 lb. pedreros, and

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24 lb. obuses) specified by Spanish Navy regulations for Frigates of War at the time of Mercedes. (Spain Mem. Ex. D, Annexes 14-16; Spain Mem. Ex. A, ¶ 26, Annex 13) and specifically documented as Mercedes' armament. (Spain Mem. Ex. A, Annex 15). The bronze cannon can be seen to match exactly Spanish Navy specifications for Mercedes' pedreros and obuses. (Spain Mem. Ex. D, ¶ 99, 104, 105; Spain Mem. Ex. A, ¶ 32). I also note that the match of cannons at the site with Spanish Navy specifications is not disputed by any Odyssey submission. In this connection, I also note that, although Kingsley notes that many of the iron cannon are corroded, buried or concreted, this is to be expected after two centuries of submersion in salt water. Kingsley does not dispute that their observable features and sizes correspond to Mercedes' weaponry. 11. The fact that every cannon listed on Mercedes' manifest is not visible on

the seabed is a common characteristic of many shipwreck sites, even those that do not rest in sediment or sand. A case in point is the British 44-gun frigate HMS Endymion, built in 1779 and wrecked in the Turks and Caicos in 1790. The wreck lies in relatively shallow waters less than 30 meters in depth along the side of Endymion Rock on a corraline and sand bottom. Many features, including the bottom of the hull, iron ballast, anchors and cannon are exposed or lightly covered with sand. Surveys of the site in the 1990s disclosed only 20 cannon, a subsequent survey located another two cannon, and a recent survey in December 2007 located several more cannon. According to archaeologist Donald Keith, who is conducting the survey, while 28 cannon are now pinpointed on the site, the other guns are believed to lie beneath other artifacts and features such as degraded and concreted remains of the hull and its fastenings.

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12.

The critical points that can be observed about the iron cannon are that

1) they are 12 lb. and 6 lb. cannon, the sizes specified for Mercedes' main battery: 2) where their shapes can be seen, they are of the Spanish pattern; and 3) none of the cannon visible at the site are of a size or shape that is inconsistent with Mercedes. 13. Kingsley argues that cannons are "weak indicators" because they were at

times circulated or exchanged among ships of different nationalities (Odyssey Mem. Ex. A, p. 24). To support this, Kingsley cites cannon found at the sites of Sacramento and Santa Maria de la Rosa (Id.). As Kingsley acknowledges, however, Santa Maria de la Rosa is a vessel from the Spanish Armada of 1588 and Sacramento dates from 1688. (Id.) Both ships long predated the standardization of naval ships and their armament that took place during the 18th Century. That standardization was well in place by the time of Mercedes, as documented by Spanish Navy specifications for Mercedes' cannon inventory (Spain Mem. Ex. A, ¶ 22, Annex 15; id., Ex. D, Annexes 14-16). (I discuss below the point raised by Kingsley that not all of Mercedes' cannon are visible in site photographs.) 14. In my initial declaration, I noted that the site is strewn with copper

sheathing characteristic of a Spanish Navy vessel, and that its condition shows the violence of Mercedes' loss. Sinclair agrees that copper sheathing is present at the site and that it is torn and crumpled: He acknowledges "the tearing and crumpling of the copper sheathing that covered the hull." (Odyssey Resp. Ex. B, p. 20). 15. Kingsley agrees that Mercedes was sheathed with copper (Id., Ex. A, p.

18), and that the copper sheathing nails taken by Odyssey from the site "definitively point towards the use of copper sheathing..." (Id., p. 44). Curiously, however, Kingsley

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argues that the sheathing visible in site photographs may be lead, based on lack of bluegreen copper coloration in some of the images (Odyssey Resp. Ex. A, p. 44). But the images containing copper sheathing (Spain Mem. Ex. D, Annexes 9.4, 9.17, 9.18, and 9.19) are for the most part in black and white, a function of low lighting strength. Even in black and white, however, the sheathing sections are distinctly light in color and reflective, as is characteristic of copper, not lead (Lead sheathing is dark grey and unreflective). 1 In my Annex 9.21, an image which has the benefit of strong lighting that reveals coloration, the blue-green color of copper sheathing can clearly be seen. C. Copper and Tin Ingots 16. The presence of copper and tin ingots is another highly diagnostic site

feature documented for Mercedes, as I have noted. It therefore bears emphasis that the presence of these distinctive materials on Mercedes and at the site is obvious and undisputed (Odyssey Resp. Ex. A, p.8; Odyssey Resp. Ex. B, p. 8). D. Culverins 17. My initial declaration and that of Admiral de Leste noted the presence of

"two discarded bronze culverins" on Mercedes' manifest (Spain Mem. Ex. A, Annex 15) and in the site photographs. The presence of 16th and early 17th Century weapons at a site in association with cannon and other artifacts that otherwise correspond to a late 18th Century Spanish warship provides extraordinarily strong vessel-specific evidence for Mercedes and the site. At underwater sites, the extent to which colors show in photography depends on lighting strength. Photographs of the copper ingots on the seabed likewise also are mostly in shades of gray, rather than their normal blue/green color, because of low lighting. See, e.g., Annex 9.1 to my initial declaration).
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18.

I therefore note that Kingsley agrees that the culverin identified in my

Annexes 9.29-9.32 is at the site (Odyssey Resp. Ex. A, pp. 24-25) and that it and other cannon at the site "certainly share stylistic traits with Spanish examples. . ." (Id.). I wish to note that the second culverin can be seen in Annex 9.7 to my initial declaration. The bronze cannon is buried except for the muzzle end. The exposed muzzle area has the distinctive flaring and reinforcement banding characteristic of culverins. (Compare my Annex 9.7 to Annex 9.32; see also Spain Mem. Ex. A, de Leste Decl., Annex 32). Flaring and banding was used to provide culverins with added protection against barrel bending or bursting, necessary because of limitations in bronze gun casting technology in the 16th and 17th centuries. E. Coinage 19. The significance is obvious with respect to the presence at the site of a

large population of coins for which all available information is that they; 1) are exclusively Spanish; 2) are dominated by South American mints; 3) have a date range that is concentrated in the years closest to Mercedes' final voyage; and 4) stop in 1804. I note that Kingsley agrees that the information available about the coins "dovetails with the historically-attested coin cargo on the Mercedes." (Odyssey Resp. Ex. A, p. 54). Sinclair agrees that the coin data, including some 5000 cleaned and analyzed silver coins (Id., Ex. B, pp. 4-5), "fall within the limits of what one would expect from the Mercedes." (Id., Ex. B, p. 21). 20. Remarkably, Kingsley suggests that one should be "cautious" about the

coins because Spanish coins were circulated among countries "engaged in international commerce." (Id., Ex. A, p. 52). It is true that gold and silver coins were circulated

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before paper currency came into common use. Given the historical record that Mercedes was en route from the Americas to Cadiz with a large amount of specie, and sank south of Cape Saint Mary, however, it is implausible to speculate, as Kingsley does, that a Dutch or French ship carrying this Spanish coinage might be at the site (Id., Ex. A, p. 53). 21. With regard to the issue of completeness of the coin data, I also note that

the nationality, origin and dates of a complete coin population set is provided by the Department of Numismatics of the Spanish National Museum of Archaeology. (Spain Mem. Ex. H) Senora Marcos Alonso's study of all of the gold coins recovered by Odyssey reports that they are exclusively Spanish and have dates that begin in 1784 and end in 1803. She also reports that coins minted in 1803 in Lima constitute nearly half of these 212 coins (98 out of 212). Sra. Alonso and Ms. Tedesco also report on randomly selected samples of silver coins that produced similar findings. (Spain Mem. Ex. H, Annex 4; reporting 41% of the gold coins are dated 1803 and no post-1804 coins; Odyssey Resp. Ex. H, p. 4, reporting 1773-1803 dates on unconserved silver coins.) F. Site Observations: Sinclair and Kingsley 22. I now address arguments advanced by Sinclair and Kingsley relating to

conditions at the site to the effect that, despite this evidence, it is premature to identify the site. For the sake of brevity, I do not do so on a paragraph-by-paragraph basis, but rather discuss principal lines of argument presented in their reports. One important observation I should note at this point is that Sinclair, whose report discloses that he has substantial experience with deepwater archaeological sites, confirms essential aspects of my own

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observations. Sinclair also demonstrates that Kingsley, whose reports disclose no actual fieldwork at comparable sites, has made fundamental errors and oversights. 2 23. An appropriate starting point is Sinclair's acknowledgement that the site is

a "debris field" that is "consistent with a vessel that has broken up at the surface, descended through the water column and spilled out the cargo and various components onto the seabed" (Id,. Ex. B, p. 8). (Although Sinclair states that the cause of the vessel breaking up was "not necessarily due to an explosion," (Id.), he does not address (or dispute) the specific evidence cited in my initial declaration of visible blast damage to cannon, sheathing and other elements (Spain Mem. Ex. D, ¶¶ 24, 89-96)). As noted earlier, Sinclair agrees that the copper sheathing is torn and crumpled. Sinclair states that the "explosion theory while having some merit can also be explained by the breakup of a vessel on the surface and the subsequent stress exerted on the materials as they descended through the water column" (Odyssey Resp. Ex. B, p. 17) on a "kilometer long fall" (Id., p. 10) to the seabed. Sinclair thus agrees that the site represents a vessel that broke apart at the surface, as we know occurred with Mercedes due to the well-documented explosion. Sinclair also agrees that the remains of the vessel were separated and scattered by the stresses involved in sinking more than a kilometer, as I also noted in my initial declaration (Spain Mem. Ex. D, ¶¶ 24, 35). 24. Sinclair also agrees that the distribution of vessel remains is influenced by

the fact that wooden hull sections become relatively buoyant as heavier objects fall from them. This process makes hull remains prone to greater dispersion (Odyssey Resp. Ex. Kingsley refers to fieldwork he has conducted at the Dor/Tantura site in Israel (Odyssey Resp. Ex. A, Annex 2). This site is an extremely shallow coastal lagoon.
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B, p. 9), as I noted in my initial declaration (Spain Mem. Ex. D, pp. 9, 13-14) and as is seen in the site photomosaic and photographs. Sinclair also agrees that this process would not produce "an intact shipwreck site in the classic sense." (Odyssey Resp. Ex. B, p.10). 25. Sinclair also concurs that the condition of the hull remains at the site

reflect the degradation of wood submerged in salt water that is to be expected after two centuries of submersion. Sinclair appropriately notes that "wood is not a substance with good survivability in ocean environments" (Id.). Indeed, Sinclair states that those who "have a grasp on actual chemical and biological reactions in seawater or corrosion science" know that it can result in the "lack of preservation [that] is very evident on the Black Swan site." (Id., p. 9) 3 Sinclair also states that "we have site features and objects that certainly once we were part of a vessel," but the "structural remains that once were associated with the Black Swan site have been largely decomposed." (Id., p. 17) Sinclair thus concurs with my earlier statement that "It is well known in maritime archeology that at the site of a two century-old shipwreck in the open ocean only a fraction of the wood and other organic materials that are not buried will survive. . ." (Spain Mem. Ex. D, ¶ 22) Sinclair agrees that the site constitutes remains of a vessel, in the condition and with the patterns of dispersion that would be expected of Mercedes. Sinclair also appears to confirm my observation that Odyssey's statement to the court in Interrogatory Answers that "the most outstanding characteristic of this site is the actual absence of a vessel" is inexplicable. Sinclair thus captures a major misconception underlying Kingsley's report, discussed further below.
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26.

Sinclair proposes that because the site is that of a vessel that broke apart

on the surface and underwent dispersion as it sank a kilometer, hull remains containing additional artifacts may have drifted away and/or came to rest outside the approximately 120 by 160 meter covered by the photomosaic. (Odyssey Resp. Ex. B, pp. 9-10). 4 Sinclair and I are in general agreement about this. As I noted in my initial declaration, it is well documented that Mercedes was torn apart by the explosion and portions of Mercedes became "separated or floated away." (Spain Mem. Ex. D, ¶ 35). Survivors were rescued from fragments that remained afloat after the explosion. One such fragment was the forecastle that remained afloat as it drifted away from the site of the explosion. (Id., ¶ 89, and Annex 13). Within the photomosaic area, separated deposits of vessel remains reflect the ship having been torn apart by the explosion, then sinking more than a kilometer. (Id., ¶ 24). A concentrated deposit of heavy objects shows the central area of Mercedes' remains, but there is no reason to posit that all of Mercedes' hull and its contents came to rest within the photomosaic area. The historical accounts confirm that the forward section, and likely other fragments, remained afloat or partially afloat. 27. Kingsley advances a series of arguments that, to avoid invective, I will

simply say are misconceptions refuted by Sinclair and/or do not correspond to this site. Kingsley rests much of his report on the premise that a "defining characteristic" of the site of Mercedes should be the "survival underwater of large, inter-connected sections" of its hull. (Odyssey Resp. Ex. A, p. 3). Sinclair speaks to and refutes Kingsley. Sinclair notes that it is a "falsehood" to expect a wooden shipwreck to remain undegraded on the
4

Kingsley refers to an area that is 368 meters long, but provides no further information as to the information on which he bases this figure (Odyssey Resp. Ex. A, p. 9).

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seabed and that such a theory would only be advanced by those who "seem not to have a grasp on actual chemical and biological reactions in seawater or corrosion science in particular." (Id., Ex. B, p. 9). 28. Kingsley also states that at the site "[t]he environment is conducive to

optimum preservation." (Id., Ex. A, p. 5). Kingsley attributes this to the "anaerobic conditions encountered in the world's seas", which "make the environment in which the Black Swan site has settled. . . conducive to the survival of wood." (Id., p. 31). This is indeed a surprising statement: an anaerobic environment is one in which no oxygen is present. An anaerobic environment cannot sustain sea (or terrestrial) life. Kingsley's analysis of the evidence thus rests on a premise that the world's seas are biological deserts incapable of sustaining marine life such as the marine worms and bacteria that consume wood. Fortunately, of course, this is not the case. Kingsley's misunderstanding of the ocean environment and conditions at this site is graphically shown by the presence at the site of the oxygen-dependent stingrays, starfish and sea urchins that he catalogs from site photographs. (Id., p. 12). 29. Kingsley also asserts that at the site there is "minimal current and sand

motion" and "the environment is hydronamically [sic] stable." (Id.). Kingsley appears not to have examined Odyssey's "Preliminary Site Assessment" report on site conditions. According to Odyssey's observations based on extended ROV operations at the site, a "constant subsurface current runs across the site in a northwest direction." There have been "considerable alterations" of the seabed. (Id.) The strength of the current was graphically illustrated by "at least one modern plastic bag of trash that came rolling

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across the site and past the ROV cameras . . ." Odyssey also notes that "[c]ultural material on the site . . . functions as an effective fence across the current." 30. The presence of current has major effects on a shipwreck site. Current

provides a continuing flow of oxygenated seawater that promotes cellulose consuming bacteria and other marine organisms such as wood-consuming marine worms. Current also moves bottom sediments (and artifacts), transporting sand and sediment, forming and moving sand and sediment drifts much like wind movement in terrestrial environments such as deserts. These effects can be clearly seen in site photographs. Sand drifts formed by current can be seen in Annexes 9.5, 9.8, 9.21, 9.26, 9.34, 9.36, 9.42, and 9.50 to my initial declaration (Spain Mem. Ex. D). 31. Kingsley's argument that the site may not be Mercedes because well

preserved and inter-connected hull sections are not present on the seabed cannot be reconciled with the known facts that Mercedes was torn apart by a catastrophic explosion, then sank in deep water two centuries ago. Once it sank, Mercedes was not in a "anaerobic condition" ­ the unburied remains were exposed to a constant current that promoted degradation of exposed wood and other organic material. As Sinclair states, "[t]his lack of preservation is very evident on the Black Swan site" (Odyssey Resp. Ex. B, p. 9) and "I agree with Delgado in that what little structural remains that were once associated with the Black Swan site have been largely decomposed." (Id., p. 17). 32. Reports from other sites provided by Kingsley attest to the process of

wooden hull degradation that is commonly found at nautical archaeology sites. With respect to Sacramento sunk in 1688 off Brazil, the investigators report that "there is little

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left of the hull of the galleon." (Id., Annex 10, at p. 9 of 13). Pomone, a British frigate sunk in 1811 off Portsmouth, England, experienced "total disintegration" on the seabed. The site consisted of "artifact scatters." (Id., Annex 11, p. 22 of 23). See also Id., Annex 13, pp. 13-26 (site plans showing fragmented hull remains of La Trinidad Valencera, 1588 and Santa Maria de la Rosa (1588) . 33. Kingsley's erroneous premise about site preservation conditions and their

effect on organic materials such as wood is also graphically shown by other artifacts. Kingsley acknowledges that the coins were shipped in wooden chests (Id., p. 5). What once were coin chests now are visible only as "concreted coin clumps and clusters." (Id.). See as an example Annex 9.1 to my initial declaration, showing concreted coins with the surrounding wood gone. Kingsley acknowledges that wood remains from coin chests at the site consist of fragments that were "preserved beneath coin clumps." (Odyssey Resp. Ex. A, p. 51). 34. An equally remarkable and erroneous premise on which Kingsley rests

much of his report is that it is "physically impossible" for hull remains or any other substantial quantity of artifacts to be buried at the site. (Id., p. 3). Kingsley contends that depressions in the seabed visible in site photographs are not scour pits, but rather "impact craters created when extremely heavy chests of coins and cannon weighing several tons smashed into the seabed . . ." (Id., p. 10). Here also, Kingsley fails to consider Odyssey's Preliminary Site Assessment. After noting the presence of a constant current across the site, the Odyssey Preliminary Site Assessment states that "scour pits are present around most of the larger anomalies."

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35.

Kingsley Annex 2.14 shows one such scour pit. I attach additional images

of this feature as Annexes 1 and 2 to this declaration. Those images show the depth to which loose sand or sediment has been exposed by current-induced scouring and buried artifacts have been exposed. A depression extending a meter or more into loose sand and/or sediment can be seen. In the depression, an intact Spanish olive jar, a section of thin pipe and other items have been exposed. An intact ceramic jar and a piece of pipe could not create a meter-deep crater. The sides of the pit are also clearly fresh, not two centuries old. This is a classic scour pit created by the current at the site as it shifts loose sand or sediment and exposes buried artifacts. 36. I also note in this connection that Kingsley states that ceramics at the site

consist only of one intact olive jar and one base of an olive jar. (Odyssey Resp. Ex. A, p. 3). The photographs I provided with my initial declaration contain at least two Spanish olive jars that I selected as examples. (Annexes 9.50 and 9.51). The ceramics seen in Annexes 9.50 and 9.51 were selected by me on a conservative basis as examples. These are by no means the only ceramics visible on the seabed. Additional bowls, bottles etc. are visible, but are not exposed sufficiently, or the resolution of the image is not clear enough, to identify them with certainty. Annex 9.2 for example, shows two apparent bowls or jars that are buried up to their rims. I provide with this declaration Annex 3, which shows the top of another largely buried olive jar. 37. Numerous additional site photographs show the burial of artifacts that

Kingsley asserts is physically impossible. Annex 9.6 to my initial declaration, for example, shows a 12 pdr. cannon that is buried for all but about a half meter at the muzzle end, together with snagged modern fishing net that is largely buried also by - 17 -

shifting sediment. The buried portion of this cannon is a meter or more. See also Annex 9.7, the apparent culverin I previously discussed. The full length of such a weapon should be at least 3 meters, but only a small fraction is unburied. Annex 9.13 shows a large rectangular iron object, possibly a cooking stove, that is largely buried. Annex 9.29 shows another culverin, with the bottom portion buried. Annexes 9.36 and 9.37 show an anchor whose fluke is exposed, while the shank extends downward at an angle into the seabed. The shank of an anchor such as this is about 3 meters long. 38. The ballast deposits visible at the site are also highly relevant in several

respects. As an initial matter, I note that Sinclair agrees that ballast is present (Odyssey Resp. Ex. B, p. 13), as can be clearly seen at the site. (See Spain Mem. Ex. D, Annexes 9.5, 9.16). In Annex 9.15 to my initial declaration, it can be seen that the ballast rests in place on remains of the lower hull, with a tween deck stanchion still attached to a timber. In Annex 9.5 to my initial declaration, it can also be seen that the ballast pile extends over a considerable distance and gradually ceases to be visible at the lower left corner of the image because of burial by sand drift. I provide Annex 4 with this declaration, as it also shows the large area over which the visible portions of the ballast pile can be seen. These images graphically show that a section of the lower hull came to rest upright here, such that gravel ballast remained in place, and has since been largely buried. It should also be noted that ballast rests on a false deck laid across the lower hull, just above the hull bottom and keel. Because of burial, the full dimension of this ballast pile cannot be seen, but the visible area extends over what appears to be at least a 4-meter distance. These images also tell us that keel remains likely lie here, beneath the ballast.

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39.

It is thus fallacious to argue, as Kingsley does, that the site cannot be

identified because not every cannon or all of the storage jars or other items on Mercedes are in plain view on the seabed. We know that portions of the ship remained afloat and it is neither logical nor necessary to assume that all of Mercedes came to rest in the photomosaic area. It can also be clearly seen that within the photomosaic area, there is loose sand and sediment in which ballast and hull remains, cannon, ceramics and other artifacts lie with varying degrees of burial. And we know that the non-organic artifacts (cannon, copper tin ingots, culverins and coins) that are clearly visible above the seabed point specifically and unmistakably to Mercedes. G. Human Remains 40. Kingsley characterizes it as "vicious" to note that Mercedes is the resting

place of those who died in the explosion and sinking of the ship and to note that human remains may be buried at the site. (OdysseyResp. Ex. A, p. 18) It is surprising to find such a statement, particularly in view of Mr. Stemm's declaration that Odyssey has a policy of "utmost respect" for shipwreck sites (Odyssey Resp. Ex. D, ¶ 13). The historical record is clear that the vast majority of its crew, and the family of Captain Alvear, died on Mercedes. Even when human remains have disintegrated, leaving behind shoes, clothing or other personal effects as in the cases of Titanic, Bismarck or U.S.S. Arizona at Pearl Harbor, we know that the site is the resting place of those who died in the loss of the ship and recognize that this should be respected. 41. Although bone material is likely to be dissolved and consumed if it is

exposed on the seabed, human remains survive for centuries when they are buried by vessel remains or sediment. Attached as Annex 5 are Odyssey photographs of a pelvis

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and a scapula taken from the site of a vessel identified by Odyssey in Case 06:cv-01685 as a 17th century vessel. H. Archaeological Standards 42. A broader matter that should be discussed is compliance with proper

archaeological practice. Observance of accepted archaeological procedure is a matter of vital concern to me as a nautical archaeologist. Adherence to archaeological standards and priorities is a key consideration in whether an archaeological site has been damaged for treasure hunting or has been treated in accordance with the historic, archaeological and public interest in an irreplaceable site. 43. The declaration of Mr. Stemm states that "Odyssey has always conducted

its archaeological operations with the utmost care and respect for shipwreck sites." (Odyssey Resp. Ex. D, ¶ 13). It is unfortunate, but necessary, to note that the information provided by Odyssey shows striking disregard for sound archaeological practice and respect for the site. 44. In my initial declaration, I noted that it was evident that Odyssey's

operations at the site had concentrated on a sustained effort to recover coins and little else. Mr. Stemm's declaration confirms that Odyssey's activities at the site were driven by a "decision [that] was made to recover the massive cargo of coins from the site . . ." (Id.). It is evident from Mr. Stemm's affidavit that what Odyssey calls "archaeological operations" consisted of an effort to take coins as rapidly as possible from the site. Mr. Stemm describes no effort by Odyssey during its operations to gather other diagnostic artifacts or data.

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45.

Kingsley supplements this disturbing picture. Notably, he states that "[n]o

stamped or incised epigraphic evidence has been recorded on the cannon, ingots, rigging elements or pewter/silver wares in the seabed to identify the Black Swan site . . ." (Odyssey Resp. Ex. A, p. 3). Taking his statement at face value, Kingsley tells us that Odyssey did not record data that he argues is essential for proper archaeology. I. Mercedes' Naval Status 46. My initial declaration discussed the historical background of Mercedes

and the Battle in which she sank as a result of the instructions given British Captain Moore to detain specie-laden "Spanish homeward-bound Ships of War." I also noted that this was a standard and official military function during this era, authorized in the case of the U.S. Navy by Congress and by standing orders of the Secretary of the Navy, and by an Order in Council for the British Navy. (Spain Mem. Ex. D, ¶ 16, and Annexes 4 and 5. 47. I will not review again the official documentation that has been provided

showing the commissioning and service of Mercedes as a Frigate of War and the orders under which she was serving. However, in view of speculation that has been offered that Mercedes was actually a "packetboat." (Odyssey Resp. Ex. E, p. 3). I wish to call attention in particular to the June 8, 1804 report of Captain Goycoa to Minister of the Navy Grandallana (Spain Mem. Ex. A, Annex 15). Captain Goycoa reports his arrival at Montevideo from El Callao en route to Cadiz and acknowledges that he has been placed under the order of Squadron Leader Bustamante y Guerra. Captain Goycoa lists the names and ranks of the "oficiales de guerra" ("officers of war") serving on Mercedes. He also lists Mercedes' crew complement, cannon and other armaments, munitions and other

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provisions and stores. Mercedes' crew totals 319, including 42 Ordinary Gunners, 9 Load Gunners, 63 Marines and 18 Marine Gunners. Detailed breakdowns of ammunition and other stores are provided. This document itself tells us that Mercedes was engaged in active military service. A 38 gun frigate of war, with a crew of 319, including more than 60 gunners, and a 63-man marine detachment is not a "packetboat." 48. The Odyssey declarations argue that Mercedes was assigned to the

Spanish Correos Maritimos, but the historical sources relating to Mercedes that are provided: (1) identify Mercedes as a Spanish Royal Navy Frigate of War (See, e.g., Odyssey Resp. Ex. C, Annexes 3, 31; Id., Ex. F, Annexes 6, 13, 24); and (2) affirmatively show that Mercedes was not a Correos Maritimos vessel. 49. As to the former, another example is Odyssey Resp. Ex. E, Annex 8,

identifying Mercedes as a "war frigate of the Division under the command of D. Josef Bustamante y Guerra, Second Commander of the Royal Navy." 50. With respect to Correos Maritimos, two historical sources are particularly

noteworthy. Annex 23 to the Flayhart report (Odyssey Resp. Ex. F) reports a post-battle meeting between Captain Alvear and Captain Moore. As I noted previously, Moore's orders were to detain only Spanish Ships of War and not to interfere with "Merchant Ships of that nation, however laden, on any account whatsoever." (Spain Mem. Ex. D, Annex 3). Flayhart Annex 23 reports that, in accordance with these orders, Moore allowed Spanish merchant ships as well as a postal ship to "pass by freely" while he awaited the Spanish warships.

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51.

Flayhart report (Odyssey Mem. Ex. F) Annex 15 is an excerpt from

Correos Maritimos Espanoles, a history of the Correos Maritimos. Dr. Flayhart reports that he consulted this source and provides page 144 of this reference work, a list of Correos Maritimos vessels in service in 1779-1781. Flayhart cites this document as evidence that the Correos Maritimos "occasionally chartered `fregata commercial'" (Id., p. 8). 52. Flayhart omits the list of 1802-1804 Correos Maritimos vessels and

voyages provided in the same volume. Annex 6 to this declaration provides pages 188191 from the same history of the Correos Maritimos, which were not provided with or discussed in the Flayhart report. Annex 6 contains a listing of Correos Maritimos vessels and sailings from December 1802 through February 1805. As can be seen, Mercedes is not on the list. The Correos Maritimos vessels are identified as Brigantines and Corvettes - lighter, faster vessels than frigates of war. 53. As a historian, I find the omission of this information from the Flayhart

report and annexes troubling in view of his effort to suggest that Mercedes was serving as a Correos Maritimos vessel. * 54. * *

In sum, as I noted in my initial declaration, multiple overlapping sources

of consis