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 C

[Official header of the Ministry of the Economy and Treasury]

Under-Secretariat General Technical Secretariat General Sub-Directorate of Information, Documentation and Publications__________ Central General Archive

AGUSTIN TORREBLANCA LOPEZ, career official of the Government Corps of Archivists, Librarians and Archeologists, with personal registration number 111271046 A 0304, who at present holds the post of Technical Adviser responsible for the General Archive and Library of the Ministry of the Economy and Treasury. CERTIFIES First.-That the photocopies that accompany the present [certification] come from the following publications: Gazette of Madrid (currently the Official Bulletin of the State), General Account of the State and the Legislative Collection of the Public Debt. These are all works that are conserved in the General Archive and Central Library of the Ministry of the Economy and Treasury, units for which I am the responsible technical [official]. Second.-That the character of the three publications is official, which is to say that their content is considered authentic, and the General Administration of State and the Kingdom of Spain is responsible for it, as guarantor of its own official acts. Third.-That the documents contained in the attached photocopies contain: - Legislative Collection of the Public Debt: legislation of the "English Prizes" branch, by virtue of which the individuals affected by the loss of goods in cash and specie as a result of the naval actions carried out by the British and Spanish fleets between 1804 and 1805 were indemnified by the Spanish Public Treasury, since their cases remained outside all of the conventions on indemnifications signed between Spain and Great Britain. In said legislative collection, all of the legislation issued by the State between 1824 and 1860 to recognize the right of indemnification of th[ose] affected is collected under the heading "English Prizes" and in which the State agrees since 1852, as a consequence of the Law on Public Debt of 1 August 1851, to the payment of the same as Public Debt of the State at 3% interest. - Gazette of Madrid: collects, among other things, the legislation of 1869 relating to the Public Debt touching upon the subject of the recognition of rights to indemnification for "English Prizes." - General Account of the State: document originating from the Tribunal of Accounts of the Kingdom of Spain, the highest state organ responsible for the audit of public spending of the Administration. In the photocopies of the General Accounts approved by the Tribunal between 1853 and 1881, the total items of the

"English prizes" branch can be followed annually; allowing for the confirmation of the amount of interest paid, the amortization of titles, as well as the settlement of capital intended to indemnify for losses caused by the naval campaigns of 1804 and 1805. Fourth.-That from the study of the documents contained in the photocopies of said official texts, the following facts are gleaned: One.-The Spanish Crown, and in its name the Spanish Government, decided through the Royal order of August 24, 1824[,] to indemnify the Spaniards who suffered losses as a result of the "English prizes" produced during the naval campaigns of 1804-1805. These losses and others in the years after 1805 resulted in claims for indemnification to the governments of Spain and Great Britain, which agreed through a treaty signed in 1823 to create a bilateral commission to deal with the claims of citizens of each nation for losses suffered from 1808 to 1823. The losses suffered in 1804-1805 were left out of the agreements between Spain and Great Britain, and were assumed exclusively by the Government of Spain. Two.-The Royal order of 1824 ordered "all those interested in the ships and properties of any nature that were captured or detained by the English in [1804-1805] [to] submit to . . . [the] Secretary of State expressive and substantiated accounts of the damages that they experienced on this occasion, and duly accredited with documents that justify the property, era and circumstances of the damage and its amount." Public announcements were issued so that those interested could present this evidence along with their claims. The process of recognition of rights to indemnification was prolonged through time, and the Government of Spain established time extensions for the presentation of claims with their due documentation. In 1851-52, with the purpose of resolving the Public Debt, the Courts and the Government agreed[,]in order to be able to proceed with the payment of the indemnifications[,] to recognize those indemnifications founded on documentation submitted in accordance with the law as Public Debt of the State, in titles with 3% interest; which is regulated in article 5 of the Law of August 1, 1851 about the settlement of the Public Debt. Three.-The Ministry of the Treasury, through its Board of Public Debt, classified said type of Debt as "English prizes". The frigate of the Spanish Navy Mercedes -- sunk by the English on October 5, 1804 -- was included among the vessels considered as "English prizes" for purposes of the laws of indemnification and their respective process of claims. In testimony of the aforementioned, for the objects for which it be necessary and under penalty of perjury, I declare that this declaration is true and correct. Signed in Madrid this January 22, 2009. [signature] ------------------------------------------[seal] AGUSTIN TORREBLANCA LOPEZ

Spanish Original

ANNEX 1 TO EXHIBIT C (Torreblanca López Certification)

HISTORICAL PAPER
ABOUT

THE SETTLEMENT OF THE PUBLIC DEBT
MADE IN 1851,
being Minister of the Treasury and President of the Council of Ministers THE MOST EXCELLENT SIR

Don Juan Bravo Murillo;
BY

DON FRANCISCO PEREZ DE ANAYA,
OFFICER OF THE MINISTRY OF TREASURY, AND HEAD OF THE DEPARTMENT OF PUBLIC DEBT.

----------------------------------- [Seal]
Madrid - 1857 Printed by Tejado Editor Leganitos, 47.

-- 138 -[...] ENGLISH PRIZES - The English prizes have their origin from the year of 1803 until that of 1805, inclusive, and consisted of the capture of Spanish vessels and the detention of properties by the English, when Spain was in full peace with Great Britain, and without a declaration of war on the part of this power having been made. This English conduct is attributed to the resentment that the treaty of subsidies that Spain signed with France on October 19, 1803, while England was at war with France, inspired in [England]. As a result of the capture of four frigates that were coming from America with specie ["caudales"] of the Government and individuals, Spain declared war on England. After making peace, it seems that the Spanish Government repeatedly demanded of England the indemnification of these damages and the refund of the apprehended sums; but without success, because that nation always threatened [that it would] reclaim the amount of the many subsidies in arms and money that it supplied to Spain during the war of independence. The treaty pf September 23, 1817, the object of which was to set rules to impede the abolished slave trade, declared in Articles 3 and 4 what follows: Art. 3. His British Majesty obliges to pay in London, on February 20, 1818, the sum of four hundred thousand pounds sterling, to the person that His Majesty designates to receive them. Art. 4. The expressed sum of four hundred thousand pounds sterling should be considered as complete compensation for all of the losses that the subjects of his Catholic Majesty may have suffered, employed in this traffic, caused by the intercepted expeditions before the exchange of

-- 139 -ratifications of the current treaty; as well as those that are a necessary consequence of the abolition of this trade. In order to comply with the stipulations of this treaty, and to determine the tribunal that would consider the claims arising from the abolition of the slave trade, and the manner to verify the indemnifications stipulated in the same treaty, the Spanish Government agreed via Royal Order of August 31, 1819, and in view of the connection that these claims had with the matters of English prizes, that these be paid by the Royal Treasury, as liquidations were carried out and circumstances permitted; since it was not possible to identify a fixed fund for said indemnifications. By Decree of the Courts of January 9, 1822 the Government was empowered to resolve and compromise[,] by itself or through arbiters appointed by it and the British Government, the claims that the British Government made, both with regard to prizes of a dubious character for whichever cause, and to those that resulted from the blockade of Costa-firme, counterbalancing them (thus says the Decree) with the claims that Spanish subjects may have against Great Britain. By virtue of this authorization, the Government entered into an agreement with England on March 12, 1823, which agreement had as its object to amicably settle "the complaints that in different eras had been made to the Spanish Government about the capture of ships and the detention of properties belonging to English subjects by some Spanish authorities, and other offenses." Both these claims as well as those by Spanish subjects of the same nature of capture or seizure of vessels, and detention of properties pertaining to Spaniards, covered the period from July 4

-- 140 -1808 (date of the declaration of peace between Spain and England), until the date of this treaty (March 12, 1823). Consequently the seizures of the years 1803, 1804 and 1805 were left outside of, or excluded from [the treaty]. However, the Spanish government was not unaware of the justice of these claims, and with His Majesty focusing "his royal attention on the considerable losses that Spanish commerce suffered in the years of 1804 and 1805 with the capture of ships and the detention of properties by the English," and with the objective of indemnifying his subjects for these losses, he ordered, on the date of August 24, 1824, that the necessary records and proofs be gathered, and that for this purpose, all those interested, as owners of ships and properties of whatever nature they may be, captured or detained by the English in the above-mentioned era, send to the first Secretary of State expressive accounts and the circumstances of the damages suffered, with the appropriate documents to justify the property, era and circumstance of the damage suffered, and its total. This resolution was circulated to all the consulates of the Kingdom, and the term of two months was set for the presentation of the indicated claims in this court, which term was extended afterwards by two Royal orders, at the request of the Chamber of Commerce of Catalonia, after which new claims referring to these credits were still admitted. In spite of the Royal Order that was just mentioned, the English prizes of 1804 and 1805 have not been included until now by the offices of the Public Debt among those of equal denomination and those proceeding from slave-trading vessels, the settlement of which is still pending. [Settlement] has been carried out in said offices in accordance with the treaty of October 28, 1828, which referred to the agreement of March 12, 1823, and ratified

-- 141 -it and declared it to be in force,, with the exception of that part which was altered by [the 1828 treaty]. In the said treaty of 1828, signed with the objective of resolving the difficulties that prevented the compliance and execution of the [treaty] of 1823, "a transaction or amicable settlement, whereby in common agreement both Governments assign fixed and proportionate quantities for the indemnification of the claimants on both sides, with each power retaining the ability to judge and satisfy legitimate claims of its own subjects, with the amount that for this purpose it received from the other, or to distribute this amount among those interested through an individual arrangement with them" was accorded. This is the status this matter had, when the credits proceeding from English prizes and slave-trading vessels, both settled and still to be settled, were considered in the bill presented by the Government to the Legislature on February 1, 1851, converted pursuant to said law into titles of consolidated Debt at 5% for the totality of their nominal principal (art. 23). Apparently, on this matter the Government was to a certain degree in agreement with the opinion of the majority of the Commission in charge of settling the Debt, as the Government remained silent about this matter in its primitive project. The aforementioned majority agreed in this with what the national delegates had expressly and repeatedly requested; adding that this claim referred to an obligation[,] which, according to news from some individuals in the Board [on Public Debt] and what was expressed by those interested, would perhaps have occupied one of the first categories of the bill of the majority, if the consideration of the silence that the Government maintained in its bill on this matter had not dissuaded the signatories. It calls for, however, the same Government's consideration regarding a Debt,

-- 142 -"that is the object of incessant claims." In regulation of October 17, it is said in article 11 thus: "The principals of slave-trading ships subject to indemnity by the Government, [and] those of English prizes that constitute legitimate claims, shall be recognized as Debt issued post-hoc at 3% for all of their nominal value . . ." In light of what was said, one could not help but observe that for the settlement and payment of the principals proceeding from indemnifiable slave-trading ships, and from English prizes that constituted legitimate claims, it was not necessary for them to have been included in article 5 of the law of August 1st, nor that the national delegates direct categorical and repeated claims to the Board for the settlement of the Debt, nor that the majority of [the Board] depict said claims as worthy of the consideration of the Government. These [claims] were made repeatedly, because they had remained excluded from the treaties of 1823 and 1828, already cited, and they were directed to the Spanish government, because in the Royal order of August 31 of 1819, and most specifically in that of August 24, 1824, it had expressed that it considered the redress of losses and indemnification of damages suffered by Spanish commerce in the years of 1804 and 1805 equitable and just, and that the Government had not complained to England, for reasons of high policy, as was said in communications of the Ministry of State; reasons that were rather powerful so that said claims were excluded from the treaties of 23 and 28. If the Government renounced to such a well-founded and just demand, it was precisely due to having in this way obtained more advantageous transactions in negotiating with that [English] power the aforementioned treaties, and the circumstances of which should in no way befall to the detriment of the claimants, to whom it seemed that the

-- 143 -Legislature and the Government had made justice in the law of August 1st; given that these credits would not have been mentioned in other circumstances, which [credits] were supposed to be excluded from the settlement of the Debt in keeping with the aforementioned regulation of October 17th (art. 3), as they are in fact [considered], in accordance with the same regulation, as Debt proceeding from treaties, and which should subsist in its current form and class. The following facts arise from what has been expressed: 1. The claims coming from slave-trading ships were compensated in the treaty of September 23, 1817. 2. In the Royal order of August 31, 1819, the means to satisfy said interested [parties] was agreed upon, and by analogy and in connection with these [parties], [the means] to [satisfy] those that were [interested parties] through English prizes. 3. The creditors for English prizes of 1804 and 1805 were called by the Royal order of August 24, 1824, setting a period to present their claims. 4. Said prizes had been excluded from the treaty of 1823, and they were likewise [excluded] in the later [treaty] of 1828. 5. The English prizes that have always been claimed to the Spanish government are those mentioned, of 1804 and 1805, because they are the only ones to which this determination [of August 24, 1824] properly corresponds, and likewise because they had not been recognized in the treaties. And 6. That the law of August 1st cannot refer to others, because they were the only ones that the national delegates demanded; those that came from the aforementioned treaties of 1823 and 1828 being pending for settlement in the offices of Public Debts. In light of what has been expressed, the relevant file was created, gathering the claims lodged by

-- 144 -various interested [parties] and however many antecedents existed in the Ministry of the Treasury. Everything was reflected in a report of the Board of the Debt, whose members issued it, being in disagreement on the subject about which they were being consulted; but the minority emphasized the powerful reasons that advised the recognition of these claims, as included in the law of August 1st; since the uncertainty was really produced by the words that we have cited from the Regulation of October 17, which did not seem to conform very well to the letter and spirit of the law. The Royal Council was also heard on this matter, as well as the members of the Commission of Congress that reported on the bill relating to the settlement, and both they and the Royal Council supported the recognition of the credits that are mentioned, the latter corporation furnishing an extensive and well-founded report, which left nothing to be desired, and which did not permit the slightest doubt regarding the right that the claimants had. The Minister studied this important business for a long time and with great care: he made the Council of Ministers aware of it, where it was examined carefully for a few days, until finally, on November 28, 1852, the following Royal decree was presented to His Majesty for approval, which was published with the same date in the Official Gazette and Bulletin of the Treasury. "Informed of the doubts provoked about whether the English prizes mentioned in Art. 5 of the law of August 1, 1851, are those anterior or posterior to the year 1808: Considering that no outstanding claim exists regarding prizes after 1808, these [claims] being included in the treaties signed after said year, in which the form of payment is established, the same ones being settled in their entirety

-- 145 -by the office of Debt, pursuant to said treaties: Considering that before now the claims of various interested [parties] have always and constantly referred to prizes before 1808, which are the only ones that, since the year 1824, when a period for their presentation was opened, have been found to await an express and formal recognition: Considering that the requests of the delegates of the Kingdom's creditors have lately referred to these same prizes, who repeatedly hoped that such prizes would be born in mind in the settlement of the Debt: Considering that in virtue of this request and of the special recommendation made about it by the majority of the Commission in charge of drawing up a bill relating to the settlement of the Public debt, article 5 of the aforementioned bill of August 1 was added: Considering that the registers, news and documents which have been born in mind by the Commission of Congress in charge of providing information regarding the bill relating to the settlement of the Debt, as well as Congress itself for the discussion of said bill, have referred to these same prizes, particularly calling to mind the nominal account formed in the Ministry of State of all the claims made on time for said concept: And finally considering that in article 10 of the aforementioned law of August 1, the interests of English prizes from before 1808 are included in the scale of nineteen years; the Royal Council heard in full, and in accordance with the opinion of my Council of Ministers, I come to decree the following: Article 1: The credits from English prizes

-- 146 -preceding the year 1808 shall be liquidated and converted into titles of Debt issued post-hoc at 3%, pursuant to what article 5 of the law of August 1, 1851 decrees. Art. 2. Only the prizes claimed in the period designated by the Royal order of August 24, 1824 and later extensions, and the documented claims of which appear in the nominal account created by the Ministry of State on February 24 of last year, which is in the filed created in the Ministry of the Treasury, shall be considered eligible for the benefits granted in said article 5. Art. 3. The liquidation of these credits shall be verified subject to the rules established in the regulations in force, and in which all the credits against the State since the aforementioned law of August 1 have been included. Given, etc. on November 28, 1852. We have preferred to copy the preceding decree in full, because the many reasons that the Government had to adopt the indicated resolution, which no one has challenged up to now, are summarized therein. For its execution, the Board of the Debt formed the corresponding regulation, which was approved by the Government with a few changes. Said regulation was of such major importance, especially notwithstanding that the value of these credits reaches the sum of 226 million, which the Commission of Congress had in view, the liquidation, recognition and payment of said credits, would have to depend upon the documentation that was presented to the offices, and that based on the nature and origin of these credits, it is not very easy to gather the circumstances and formalities that other regulations establish. Shortly after this Royal Decree was published, some

-- 147 -claims of creditors were presented, who had not presented them in the different extended periods we have mentioned, and who consequently did not find themselves included in the declaration of said Royal Decree. As the[se claims] were not taken into consideration, the[ creditors] later addressed their complaints to the Constituent Assembly, which transferred these requests to a special Commission. This Commission asked the Ministry of the Treasury, to issue the report, the file of English prizes, which was recognized and scrupulously examined by the members of the Commission in the presence of some of the claimants, to whom the reports that we mentioned were read, and the report of the Secretariat's office; and neither the interested [parties] nor the Commission discerned any means to alter or give further extension to what was declared in a disposition, the justice and legality of which everyone recognized, as well as the complete instruction that had been given to the file, and which had served as a solid foundation to the right resolution of the Council of Ministers. If only this Assembly had examined all of the files of the public Debt instructed or resolved in the eras in which Mr. Bravo Murillo headed the Ministry of the Treasury! [...]

-- 205 -INDEX ----

Pages.
NOTICE.......................................................... I.-- INTRODUCTION ........................................... II.--ORIGIN OF THE SETTLEMENT AND NEW BILLS......... III.--DISCUSSION IN BOTH LEGISLATIVE BODIES........... IV.--REGULATIONS............................................. V. --CLAIMS AND PROTESTS OF THE CREDITORS............. Vouchers.......................................................... Debt issued post-hoc in 1831................................... VI.--EXECUTION AND COMPLIANCE WITH THE LAW OF THE 1ST OF AUGUST .................................................. Conversion....................................................... Credits belonging to corporations............................ Damages caused by the Faction.............................. Falsifications and adulterations of credits .................. Overseas Debt................................................... Withdrawn Official Notices.................................... English prizes.................................................... Repayment........................................................ VII.--SETTLEMENT............................................. VIII.--CREDITS FROM LOANS, NEGOTIATIONS AND LATE ACCOUNTS .......................................... Old Consulate of Cadiz......................................... 5 7 19 68 94 100 101 113 122 124 131 132 132 134 136 138 147 152 155 156

-- 206 -Pages Township of Madrid........................................... 158 File of Mr. Michel, minor .................................... 159 Bernales and company ................................... .... 160 Mr. Mendizabal................................................ 162 File of Aguado ................................................ 162 File of Remisa................................................... 164 Accounts of Mr. Ardoin....................................... 164 IX.--CREDITS FROM TREATIES.............................. 168 Debt in favor of the French Exchequer..................... 168 Credits from treaties with France........................... 172 Debt in favor of the English Government........................ 176 English Claims................................................. 180 Debt of the United States..................................... 181 Debt of Sweden.................................................. 182 Debt of Denmark.............................................. 183 X.--CONVERSION OF DEBT ISSUED POST-HOC TO CONSOLIDATED DEBT............................................................ 185 IX.--CONCLUSION............................................ 196

692 [...]

Royal Order of August 24, 1824 MINISTRY OF THE TREASURY. =The Secretary of the Office of State has communicated the following Royal order to me on the 21st of the current month: Incessantly concerned with promoting the prosperity of his beloved vassals, and in procuring for them redress for the harm that they have suffered as a result of the wars and past calamities, the King our Lord has focused his Royal attention on the considerable losses that Spanish commerce suffered in the years 1804 and 1805, with the capture of its ships and detention of its properties by the English, when Spain was at peace with Great Britain, and without there having been a preceding declaration of war by that power. So that the paternal purposes of His Majesty on the indemnification of his subjects for these losses may be verified, he considers it necessary before everything else to gather the records and proofs that detail and accredit them. And to this end he has deemed proper to order all those interested in the ships and properties of any nature that were captured or detained by the English in that era, to submit to this first Secretary of State expressive and substantiated accounts of the damages that they experienced on this occasion, and duly accredited with documents that justify the property, era and circumstances of the damage and its amount. Each account referring to a single owner or a single case

693 shall arrive separately, and all of them are to be presented in this Court in the established term of two months. I communicate this to Your Excellency by Royal order so that you inform all of the Consulates of the Kingdom, so that they execute the same on their part in the district of their jurisdiction in a way that, without being too public or loud, is sufficient so that the [announcement] may arrive to all those whom it may interest. And from the same Royal order I transfer it to Your Grace for your knowledge and compliance of what is provided in it. May God keep Your Grace for many years. Madrid, August 24, 1824.=Ballesteros = Mr. Prior and Consuls of the Consulate of.....

Spanish Original