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)

ANNEX 4 TO EXHIBIT B (O'Donnell Reply Declaration)

Chapter 1. From 1802 to 1809 In which, the Institution of the Maritime Mails ["Correos Marítimos"] having been abolished, its belongings and obligations begin to depend upon the Royal Navy. As we saw in the previous summary, it was King Charles III who, in 1777, confirmed the creation of the Maritime Mails to the Indies by signing the Royal Ordinance of the Maritime Mail through which the manipulation and shipment of all correspondence, both official as well as private, was regulated and controlled for the first time, between the Spanish metropolis and its immense colonial Empire. This Royal Ordinance of the Maritime Mail, which was not officially abolished until 1809, underwent, nevertheless, an important change in its organization as a result of the two wars that were maintained against England at the end of the 18th century and the beginnings of the 19th, which obligated Manuel Godoy, as general superintendent of the Mails Office and signing as "Prince of Peace", to issue the "RULES, under which, according to what His Majesty has determined, [the Maritime Mail] will be incorporated into the Royal Navy" dated April 6, 1802 in Madrid. Through this Regulation[,] which is made up of 18 sections, dedicated to maritime transportation, initiates a new era in the History of the Spanish Maritime Mails, since through the regulations contained in them,

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apart from the fact that the maritime transport is now incorporated to the ships of the Royal Navy, we can point out the following changes: 1. The Ministry of State retained, as before, everything having to do with the dispatch of the expeditions, setting the number and dates of departure for the vessels, as well as everything referring to the distribution and organization of overseas correspondence. It would ask, with due notice, the Ministry of the Navy for the vessels necessary to cover the service, which had to be provided duly equipped and armed. As a result of this new organization, all the vessels and shipyards dependent on the Superintendent of the Mails, passed to the jurisdiction of the Navy. 2. The administrators of the Mails had to deliver, as of the date of the new regulation, the vessels to the Navy; [the administrator] in Coruña to the Captain General of the Navy of the depot in Ferrol, and [the administrators] of Havana, Puerto Rico, Cartagena de Indias and Montevideo, to the Commander of Havana. 3. All the individuals, in their different ranks, that gave their services to the maritime Mails retained their employment and salary, the Ministry of State giving to [the Ministry] of the Navy a nominal report of their merits, category, years of service and the opinion held of those that had up until that moment been in the service of the [Mails] Office. 4. The principal administrators of the Mails had jurisdiction over the individuals and vessels, both in criminal and litigation matters; the [administrator] of Coruña could only exercise his jurisdiction in cases of little importance, since serious matters went to the Captain General of the department of Ferrol. 5. During the first two years after the date of the new organization, the ships would be commanded equally by officers of the Royal Navy and those stemming from the abolished institution.

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6. The mails-ship destined to the transport of correspondence had to be in la Coruña one month before the date of departure, apart from the [month] it had to permanently be in reserve and ready to depart to sea, in case of any urgent matter that demanded it. 7. The administrators of the Mails gave notice to the principal commanders of the day and time when they would hand over the correspondence to transport, and the Commander of the Maritime Mails [ship] himself, or a second commander on board should receive it and not abandon it until it was dropped off and secure. 8. These maritime mails could only receive as cargo munitions, artillery, and effects of the Royal Treasury in Europe, and in America only gold, silver, [and] tobacco on account of the Treasury. When they brought specie on board, the Commanders of the mails-vessels carried out the role of Masters of Silver. 9. To facilitate the establishment of the measures that, apart from the ones already adopted, assured the establishment of the new regime, the Board of the General Management of Mails in Madrid, would name one person characterized by his ability to instruct on different questions that might arise for deliberation, having to give notice of the appointment to the Ministry of the Navy. Types of boats employed by the Royal Navy to carry out this Maritime Mails service These "RULES, under which..." do not determine the type of ship that, according to its architectural appearance, should perform the service of maritime mail, since it only indicates that the[se ships] have to be part of the Royal Navy and that they should head out to navigate those water lines that are most advantageous for their voyage, which is to say that large vessels that can transport merchandise in competition with merchant vessels themselves are not wanted nor required, the new idea beings that of a few light vessels that make the trips quickly with

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the possibility of escaping harassment and persecution of enemy vessels. In practice, we see that brigantines were used for the line from the Antilles and Central America, and corvettes, bigger than the former, for the line of Buenos-Ayres. [. . .]

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Account of voyages undertaken by mails-ships of the Royal Navy until the enactment of the New Regulations of September 10, 1809 Port of arrival Lisbon Ferrol Coruña Bares Ferrol Coruña Coruña Coruña Coruña Coruña Coruña Vigo Date of arrival Dec. 17, 1802 Dec. 30, 1802 Jan. 4, 1803 Feb. 4, 1803 Mar. 22, 1803 Mar. 27, 1803 Apr. 16, 1803 Mar. 27, 1803 Mar. 28, 1803 Mar. 18, 1803 Jun. 2, 1803 Jul. 8, 1803 Port of origin Havana Havana Cartagena de Indias Havana Veracruz Havana Montevideo Montevideo Cartagena de Indias Montevideo Havana Baltimore Veracruz Havana Havana Date of departure from Port of origin Oct. 1, 1802 Nov. 1, 1802 Oct. 28, 1802 Nov. 14, 1802 ? ? Dec. 22, 1802 Dec. 31, 1802 Feb. 2, 1803 Mar. 5, 1803 Apr. 3, 1803 May. 2, 1803 ? ? Jun. 4, 1803

Name of the mails-ship

Class of vessel

"San Antonio"¾ (R.A.) "Descubridor" 4 (R.A.) "Casilda" (R.A.) "Cazador" (R.A.) "Batidor"4 (R.A.) "Ligero" (R.A.) "Mosca" (R.A.) "Infante D. Carlos" (R.A.) "Fuerte" (R.A.) "Casilda" (R.A.) "Prnpe. de la Paz" (R.A.) "Urquijo"4 (R.A.)
4

Mails-brigantine Mails-brigantine Mails-brigantine Mails-brigantine Mails-brigantine Mails-brigantine Mails-corvette Mails-corvette Mails-brigantine Mails-brigantine Mails-brigantine Mails-corvette

Notes: (R.A.) refers to the ships pertaining to the Spanish Navy which are designated as of the Royal Navy. 4 In this era, the ships that arrived at a Port other than la Coruña did so due to bad weather or problems that prevented them from entering into this Port, forcing them to enter in one that had better conditions.

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"Postillón" (R.A.) "Principe de Asturias" R.A. "Mosca" (R.A.) "Descubridor" (R.A.) "Inf. D. Fco. de Paula (R.A.) "San Antonio"¾ (R.A.) "Polux" (R.A.) "Palomo" (R.A.) "Mercurio" (R.A.) "Cazador" (R.A.)

Mails-brigantine Mails-corvette Mails-brigantine Mails-brigantine Mails-corvette Mails-brigantine Mails-brigantine Mails-brigantine Mails-corvette Mails-brigantine

Coruña Coruña Coruña Coruña Coruña Coruña Coruña Coruña Coruña Coruña

Aug. 1, 1803 Aug. 15, 1803 Aug. 17, 1803 Aug. 21, 1803 Sept. 17, 1803 Oct. 5, 1803 Oct. 7, 1803 Oct. 31, 1803 Nov. 9, 1803 Nov. 25, 1803

"Ligero" (R.A.) "Batidor"4 (R.A.) "Casilda" (R.A.) "Prnpe. de la Paz" (R.A.) "Gembray"4 (R.A.)

Mails-brigantine Mails-corvette Mails-brigantine Mails-brigantine Mails-corvette

Coruña Ferrol Coruña Coruña Ferrol

Dec. 7, 1803 Dec. 19, 1803 Dec. 30, 1803 Jan. 22, 1804 Mar. 11, 1804

Veracruz Havana Montevideo Veracruz Havana Cartagena de Indias Havana Montevideo Veracruz Havana Veracruz Havana Veracruz Havana Montevideo Cartagena de Indias Havana Puerto Rico Veracruz Havana Montevideo Veracruz Havana Veracruz Havana Cartagena de Indias

Jun. 1, 1803 Jun. 29, 1803 May. 30, 1803 May. 17, 1803 Jul. 7, 1803 Jul. 2, 1803 Jul. 22, 1803 Jun. 17, 1803 Jul. 26, 1803 Aug. 16, 1803 Jul. 5, 1803 Aug. 10, 1803 Aug. 31, 1803 Sept. 8, 1803 Aug. 31, 1803 ? ? ? Sept. 4, 1803 Oct. 4, 1803 Oct. 9, 1803 Oct. 8, 1803 Nov. 10, 1803 Nov. 11, 1803 Dec. 6, 1803 Oct. 12, 1803

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"Descubridor" (R.A.) "Begoña" (R.A.) "Infante D. Carlos" (R.A.) "Postillón" (R.A.)

Mails-brigantine Mails-brigantine Mails-corvette Mails-brigantine

Coruña Coruña Muros Coruña

Mar. 16, 1804 Mar. 19, 1804 Mar. 29, 1804 Apr. 10, 1804

"Polux" (R.A.) "Fuerte" (R.A.) "Inf. de Fco. de Paula" (R.A.)

Mails-brigantine Mails-corvette Mails-corvette

Coruña Coruña Coruña

Apr. 28, 1804 May. 23, 1804 Jun. 26, 1804

"San Antonio"¾ (R.A.) "Mercurio" (R.A.) "Uriquijo" (R.A.) "Ligero" (R.A.) "Batidor" (R.A.) "Prínp. de la Paz" (R.A.) "Cazador" (R.A.) "Paloma" (R.A.)

Mails-brigantine Mails-corvette Mails-corvette Mails-brigantine Mails-corvette Mails-brigantine Mails-brigantine Mails-brigantine

Coruña Coruña Vigo Coruña Coruña Coruña Coruña Coruña

Jul. 3, 1804 Jul. 11, 1804 Jul. 20, 1804 Sept. 5, 1804 Sept. 13, 1804 Sept. 14, 1804 Sept. 14, 1804 Oct. 6, 1804

Veracruz Havana Havana Montevideo Cartagena de Indias Havana Puerto Rico Veracruz Havana Montevideo Cartagena de Indias Havana Puerto Rico Veracruz Havana Montevideo Havana Cartagena de Indias Montevideo Veracruz Havana Veracruz Havana Cartagena de Indias Havana Puerto Rico

Jan. 11, 1804 Feb. 7, 1804 Jan. 9, 1804 Jan. 4, 1804 Dec. 22, 1803 Jan. 30, 1804 Mar. 12, 1804 Mar. 10, 1804 Mar. 27, 1804 Mar. 9, 1804 ? ? ? May. 1, 1804 May. 27, 1804 May. 17, 1804 ? Jun. 25, 1804 Jul. 8, 1804 Jul. 6, 1804 Jul. 30, 1804 Jun. 18, 1804 Jul. 22, 1804 May. 24, 1804 Jul. 21, 1804 Aug. 21, 1804

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"Mosca" (R.A.) "Descubridor" (R.A.) "Príncipe de Asturias"4 (R.A.) "Begoña"4 (R.A.) "Casilda"4 (R.A.) "Infante D. Carlos"4 (R.A.)

Mails-corvette Mails-brigantine Mails-corvette Mails-brigantine Mails-brigantine Mails-corvette

Coruña Coruña Ferrol Concurbion Camariñas Marín

Oct. 9, 1804 Oct. 21, 1804 Oct. 31, 1804 Dec. 23, 1804 Jan. 29, 1805 Feb. 16, 1805

Veracruz Havana Veracruz Havana Montevideo Cartagena de Indias Montevideo Cartagena de Indias

Jul. 14, 1804 Aug. 11, 1804 Aug. 3, 1804 Sept. 9, 1804 Sept. 11, 1804 ? Nov. 13, 1804 ?

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Spanish Original

ANNEX 5 TO EXHIBIT B (O'Donnell Reply Declaration)

RULES
Under which, according to what His Majesty has determined, the maritime Mails shall be united with the Royal Navy 1. It being convenient and even necessary that the directive part of the expeditions destined to transport correspondence of the public to the overseas territories remain in full in the Ministry of State, the dispatch of those expeditions shall continue to be in charge of [this Ministry], being proper of it the determination of their number, and the setting of times for their departures, as well as indicating the main boxes to where they need to be directed in the Americas, and making the subdivision among them that is appropriate within the group of that correspondence. 2. To this end, the Ministry of State shall ask the Navy for the vessels that it needs one year in advance, and they shall be at the disposal of [the Ministry of State] through the Ministry of the Navy in the number and class that they have been requested; taking them from the Royal Navy, equipped and armed according to the regulations of [the Navy], and enjoying the pleasures that these [ministries] accord their employees. 3. As a result of this obligation in which the Navy is obligated to provide on its own to the Ministry of State warships that transport the public correspondence to the convenient overseas points, the need for said Ministry to have shipyards, ships and individuals of the navy for this object ceases; all of which shall be incorporated into the Royal Navy as of now, gathering in the Department of Ferrol everything intended for this service, budgeting annually the costs that it were to cause, and accounting for them separately. 4. The Ministry of State shall issue its orders so that the Office of the Mails delivers, both in Spain and in America, the shipyards, vessels and naval effects that it possesses to the respective Directors of the Navy that shall be specified, according to the formalities of inventory; it being up to the Office [of the Mails] to settle its outstanding accounts until then with employees of its

maritime service. The same Ministry shall pass on to that of the Navy notice of the vessels and effects it can deliver, and the places where [the delivery] shall take place. But until next June first, up to which point the Navy is not yet in charge of sending Mails on its own, the Office [of the Mails] shall continue to dispatch them, much as it has done until now. 5. Everything that is in la Coruña shall be delivered to the disposition of the general Captain of the Department of the Navy of Ferrol, and everything that is in Havana and Puerto Rico of the same nature to [the disposition] of the general Captain of the same [Department] in Havana; carrying out the same procedure with respect to the Commanders of the Navy of Cartagena de Indias and Montevideo, if there were to be naval equipment or belongings in those Ports for the service of the Mails. 6. Regarding individuals, the Ministry of State shall hand over to that of the Navy a detailed payroll of the Officers that serve in the Office [of the Mails] with military rank, expressing their seniority, and accompanied by a confidential report on their conduct, aptitude and merits, so that they may be incorporated into the Navy with their corresponding ranks, maintaining their salaries if the[se salaries] were higher than those of the rank they are to obtain. And the Ministry of State shall also pass along notice of the sea Officers who serve in the Mails and their reports, so that they may also be incorporated with their respective ranks in the Navy with their salaries in cases where these are higher than those set for the Navy. But the Sailors who have served until now in the Mails shall remain in the general enrollment of this class of the Navy, and will be employed according to the scale of service that is used in their Provinces. 7. The military Commander of the Navy in la Coruña, and the Commanders of the naval bases of America, shall exercise the functions of principal Commanders of the maritime Mails, being through this fact and in relation to the branch Sub-delegates of the Ministry of State, from which they shall receive the appropriate orders to the service of said ships, accounting for and representing to that channel all that belongs to this same service; and to ensure this in cases in which it can be necessary to deal with the

Administrators of the Mails Office, the Commanders shall execute this, and shall be treated with the courtesy and good harmony that is due. 8. The principal Commanders of the Mails shall exercise sole jurisdiction over said vessels and their individuals, both in military and optional [matters], as in criminal and contentious [matters]; but [the Commander] of la Coruña shall only have the capacity to make summary [rulings], and to impose the consequent corrections in offenses that do not demand removal from the position, since in this case and any other more serious ones, the delinquents along with their behavior must be directed to appear before the Captain general of the Department of Ferrol, so that the cause be acted upon and defined in his tribunal. 9. It shall be the responsibility of the principal Commanders to take care of the readiness of the Mails vessels, verifying it for themselves using the means that they have at their disposal, and the [Commander] of la Coruña discussing with the Captain general of the Department of Ferrol about these matters when the circumstances demand it, with the capacity to disembark and ask for the replacement of major and sea Officers, and of people that is not appropriate; but with regard to Officers of war whom he considers in this case, he shall notify the Ministry of State, through which what is appropriate shall be resolved, communicating it to the Ministry of the Navy, which shall provide what [the Ministry of State] requests of it. 10. The principal Commanders shall be particularly careful to ensure that no fraud against the Royal Treasury is committed on mailsships, knowing that any Commander of any of these [ships] where [such fraud] is found shall be dishonored, and shall even be deprived of his command insofar as there is omission from his part. 11. As of the establishment of this new unit of the maritime Mails until the end of the first two years, half of said vessels shall be commanded by Officers of the Navy, bringing as second Officers those being incorporated into the Navy from the Mails, and the

other half by Officers of the [Mails], with second [Officers] of the [Navy]; with the knowledge that all of the second [Officers] shall move after one year. But after the end of the first two years, this interpolation shall cease, and after that the officers who are appointed to [mails] shall always remain in the commission of the Mails service for two years; and the crews for only one. 12. So as to avoid any delay in the service of the public, and so that it can be carried out punctually at the indicated times, the next maritime Mails [ship] to be used shall be in the Port of La Coruña one month in advance, and another one will be on hold for any extraordinary occurrence. In cases where, due to detentions or other causes, it is not possible to replace daily the provisions that are taken out of stock on these ships ready to be employed, their crews shall be aided with the value in money of the ration of the Navy according to the pro-rata of their cost. 13. With the notice that the Administrators of the Office of the Mails are to pass on Official paper to the principal Commanders of the day and time when the overseas correspondence will be handed over, they shall inform the Commander of the maritime Mail, who is to transport [the correspondence], that himself or via his second [commander] go to receive it and take it until leaving it safely on board. 14. The principal Commander of the maritime Mails of la Coruña, requesting the necessary notices from the Departments of the Navy, and keeping in mind the courses that are currently valid for their navigations, shall form a new log of the[se courses] containing illustrations that can make them easier. 15. The principal Commanders are to pay special care so that the maritime Mails always leave to sail in those water lines that are most advantageous to their voyage; nevertheless, in conserving this they receive in Europe some mercury, artillery, munitions or other cargo of effects of the Royal Treasury; and in America, gold, silver and other precious metals or even tobacco on account of the same: the only cargoes that are to be put on board.

16. In cases in which, as has been said, specie ["caudales"] is put on board of the maritime Mails on their return from the Americas, the respective Commanders shall have the position of Master of silver, which they shall carry out in the generally established way. 17. In the bases of the Navy in America, the subsistence of which depends on rents, the Office of the Mails shall aid the vessels meant for this service with the necessary specie ["caudales"], the Administrators who facilitate th[is specie] giving detailed notice to the Ministry of State, and the account of [its] investment shall be directed by the Commanders of the Navy to the Ministry of the Navy for its examination and effects that may be appropriate. 18. And so that there may be in the Board of General Management of the Mails in Madrid a person distinguished and of knowledge who can educate the Board on various occasions that may occur relating to the maritime Mails with the general Office of the branch, and for any other purposes that the Ministry of State deems appropriate, the Ministry of State shall elect with royal approval, as a member of the aforementioned Board, an Officer of the Navy of those that are Advisers of the Supreme Council of War, giving notice to the Ministry of the Navy of the general or specific Officer who has been elected. Madrid, April 6, 1802. =The Prince of the Peace.

Spanish Original