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

Filing 232

DECLARATION of Gianluca Morello re 230 Objection by Odyssey Marine Exploration, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7 - Part 1 of 5, # 8 Exhibit 7 - Part 2 of 5, # 9 Exhibit 7 - Part 3 of 5, # 10 Exhibit 7 - Part 4 of 5, # 11 Exhibit 7 - Part 5 of 5, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10)(Morello, Gianluca)

JAPAN (SAPPORO DISTRICT COURT)
:~t~fe;imniurity~ Jutisdietoná1 immunity- Clai in,tort aßat
fó,reìgnStílte - Claim arising out of operation of ship for ni;.ta:
v.

USAv. EEMSHAVEN POR.T AUTHORITY
. 225

:te remediatory measures for the plaintiffs' preservation and'to"

ion of Ainu culture bý all, including the national government

iarticipating party, as well as the government ofHokkido,and
fÓr¥gn,State entided to

Î"iip'øs.es' -' Whether .constitutingsovrreign activity -' Whether

:ommunity council of

Bii:atori Township. And we can hòpet

jurisdictional immunty - The law of the .

his time forward the national government and these others wil
;"!:~',~::.;.i: .

~tlêtlands . . .
'MÙNITED STATES OF AMERIC~ v. EEMSHAvEN PORT AUTHORITY
;~;r\:..:

: ,sufficient consideration to the problems relating to thecultuti oLe, all ofthe otl:ier circumstances' nu people. Takng these and find that reversal of.the Confs¿i' t matterinro consideration, we
the public welfat"
,"1..-:.

.dminiswitive Rulings would riot correspond to.

The Netherlands, Supreme Co~rt;. 12 November 1-999 .
)/!SUM:MARY:. The facts:-In November and December 1990 the seagoing.
¡Ötorvessel Cape May, which sailed er,i:hëdin the Dutch pOTt of :gems The haven. ~tts.:The berthing.

cordingly, in the instant matter, we apply' the provisions of Ari'd,

i of the Adminis.tative Litigation Law.'?

under the flag of the Un~ted States. .
ship was¿wtiéc1 by the United.

'ic!usion

had taken place on .conditions contained ina.document

\~'l1p by th~Port AuthoritY. which had been signed in confirmation of.

accordance with the above circumstances, the Confiscatory,¡ trative Rulings were illegal. Applying the provisions çif Articl~',
'D.()ller tubes fdl' overboard during .

:~J¡gr~einent of the United States by Mijne a,d Barends BV for or on ~ehalf

: the Administrative Litigation Law,

-,NI Corporation in New York. While' the ship was berthed a number loading. The Port Authority was in.

we proclaim the illegaitY :onfiscatory Administrative Rulings while rejecting each, oh
)~~èiítitntly; in the

ílved.in the salvage of.these tubes and .incurred COSts in this connection. .

;iffs'complaints in the instant matter,' . . . .:

period from 10 to 12 Novembe'r 1990 the Cape MaY'_'

rè)ke-aWaY from its moorings on a number of occaions and drifted, colld-'

'e apply Administrative Litigation Law Article 7 and CivilPrl and Article 94",) Law83 Article 89, the proviso of-Article 92,

igí'\\ithquayside walls belonging to the Port Authority and causing dam-

is to responsibility for court costs, . . . .'"

;cordingly, we enter judgment as

stated in our

~.' ~
iiWbya judgment of29 July.

Formal Ruling;"

g#?fhe.Port Authority sued the United States before the District Court of ;roningen, claining compensation for the items of damage estimated at a )tálpfNLG 1 Ø4,250.50. In an interim action the United Suites claimed that .
;e~DistriCt Court lacked jurisdictIon~ The District Court rejected this de-

(Reports: 4 IELR 298 (extract);.38 1LM 394 (1999))

OTE.-On 1 July 1997 theJapanese'Government enacted a Law f9Ì:'

lis:'ío!eriff judgment to the'Court of Appea of Leeuwarden, In its rul: .'

1994. The United States appeaed aganst.

otion of the Ainu Culturt: and for the Dissemination and Advocag

iiKöf 10 December 1'997 the Court of Appeal upheld the judgment. The

)i'it~d States then appeaed iri cassation against this ruling to the Suprerie

:aditions of the Ainu and the Ainu Culture. . ,,:~

::durt." ,
of

M1NSOiiÕ.

:)~flfeld:- The United States was entiûed to jurisdictional 'immunity. . ,
1M)' As international law stood at present, foreign States were not subject to éjiirisdiàion of the Dutch courts in respect of claims arising in the Netheríici,¡i the result of the operation of ships which belonged,to or were operated y;hem and which were used in the perf6i:mance of a typica government func~ .

\§h;:(:s~ch as milta~ ltctivity). ~en~ture of thi: act or event that gave rise to
~e'daIIIwas not

importance In this connection. . .
A:d'( This view was not only supported, in the practice of States, judicial .
ùliiigs in varjous other countries and authoritative literature on international ships used for government servce . :"in Article 3 of the Brussels ConventÌon for the Unification of Certan Rules .
,aw but also underlay the provisions regarding

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226

THE NETHERLANDS (SUPREME COURT)

USA 1" EEMSHAVEN PORT AUTHÒRITY 227

Article 30 of the' European Convention on State Immunity of 19722 and Article 16 of the Dra States and their Property, adopted by Articles on Jurisdictional Immunities of

relating to the Immunity of State:"üwned Vessels of 1926, i

, Distdct Court. . . '
Supreme Court is attached tq this by reference. The Port Authority submitted a statement

10 Dece~ber 1997. the Court of Appeal affrmed the judgment ofrhe

the International Law Commission

in 1991.3 , .
.

2. The United Scates lodged an' appea to the Supreme Court agast , ' the judgment of the Coui of Appea. The summons to appea beforethe

judgment and is h~reby incorporatèd '

The following is the te.xt of the judgment of the Court:

arguing that the petition for cassation must be rejected. COUnsd for both sides submitted,

PROCEDURE

argument. . .

, . The SoJiciccir-General, Mr Strikwerda, submitted a scateIentargu-

1. The defendant

in cassation ("the Port Authority") swnoned the

plaintiff

in cassation ("United States") by notice of22 November 1991 appear before the District Court of Groningen anddem,andled that to the Port Atithorityan amount of theUn:ited States be ordered to pay
from 1 July 1991, or at the

to

. . Appea for further proceedings. '

.ingthat the judgment of the Couri of Appea in Leeuwardenshould , be .reversed and that the matter' should be referred to another Court of.

NLG 104,2.50.50 plus

latest from the date of the notice. The United States submitted an exa:ptional

statutory interest

FACTS AND ARGUMENTS OF THE PARTIES,

statement arguing that the District Court lacked jurisdiction to hear this

. 3.1. IIi. these casation proceedings the foJJ~wjng facts may be as-

,, sumed:, ", ,

' . " . . .'

claim. The Port Authórity submitted a reply disputing'the arguments supmitted by the United States. . By a judgment of 29 July 1994, the DistriccCourt decided that it J
,(li) ,Through the

(i) The Urú.tedStates owns the sea-going vessd Cape

sails under the American .flag. ' " ' .
effort of a

May, which

had jurisdiction to hear the dispute and orderedthat :the pardes-con- "~~

private agent; in November 1990 the

tinue the proceedings. The United' States lodged an appea aglnst,i:is

Cape May was rnoored in the ~shaven .under the conditions

judgment with' the Court of Appeal in Leeuwarden, By a judgment of

, Set out in a doçuiert drawn up by the Port Authority and dated' ,

.' 5 November 1990. Thi document Wa signed on behal of the' , . United States by, Wijnne en Barends BY, which was acting on
behalf of OMlCorporadòn in New York. . ' .
(il) , The. Cape May was, moored in the Eemshaven iñ November and

i An. 3(1) reads: "The provisions of the tvo precding Articles sh:iii nOr Qe applicale ro ships'of war, government yachts, patrol vessel; hospital ships, 'auxiliary vesels, supply ships, and other craft.

owned or operated by a State, and used at the time a c'ause,of action arises exclusively on govt:nmental

Deceber 1990; " " .' . '
(iv) Several boiler tubes fe,li- overboard ,,the Cape May. The Port Authority was involved tubes . and I.ncured costS

and nori.conuneicial service, and such vessels shall not be subject to seizuè, auachme'nt or d,etention ' by any legal, proces; nor to judicial proc~edings in "Il' Nevertheless, claimants shall b,ve the right of taking proceedings in the competent rtibunals of th,e Scare owning or operating the ve:el. without

thar Stare being permitted to avail iislfofits immunity: (I) in cieof actions in respeecofcollsion or . other accdents of navigation: (2) in cae o:Fatiöns'in respect ofåssisracc; salvaç and.genc:ral averae;
rdating

as they were being loaded onto in retrieving these in those activities. , . .

(3) in' cae of _ttions in,tespect of repairs, supplies. or orher contractS relating to the vessel." '

2 Art. 30 reads: "The present Convention shall not apply to proceedings in respect of claim

(v) In the period from 10to 12 Dece~ber.1990, the Cape.May
, broke free, of its. moorings .several times in the Eeinshaven and was adrif. As a result, the Cape May collided With the.h:ibour . walls, which are the propero/ of the Port Authority Damage

to the operation of seagoing vessels owned or 'operated by a Contracting State or to the cariage' qf

cagoes and of pasengers by such vessels or to the carriage of cargoes 'owned by a Conttactng State

and carriage on board merchant vessels."

3 Reporcof the ILC on the work.ofits 43rd sesion, 29 April.19 July 1991, UNGAOR, N46/10,

Arr, 16 reads: "1. Unles otherWse agreed between rhe Srares concerned, a State which owol: or operare

, resulted. ' ' , " ' " . .

a ship canot invoke imm\lnity from jurisdiction befoie a coUrt of another Siate whi :is otherwise

(vi) The daim.subi:itted by t;e PortAuth()rity'~nst the United
. States is for compe.ition for the damages referred to (iv) arid (v) above. The Port Authority estimates these

competent in. a' proceeding which relates to the operation of that ship if a¡th time the ,cause of

in points
damages at atotalamount ~fNLG 104,250.50. '. ,.' . ,
. 3.2. Afer the Port Àuthoritj suimoned the United State~' on a

action arOSe the ship was used for other than government non.eommercia! purposes.-2, !~aragraph I' does it apply to other ships owned or operared does nor apply to ,warships' and naval auxliaties nor of ihis by a State and used exclusively on government non-commerdiilserce, 3, For the purposes. , Article, 'the proceeding which relates ro the operation, of the ship' means, inti, al, 'an proceeding respect of: (a) coUision or other accidenii of navigation: involVing the d,eterminaclon of a claim in. (b)assisrance, salvage and general average; (c) repairs, supplieS and or~er contrctS relaiing to the ship;

(d) consequences of pollution of the marine environment." '

basis of Article 126 paragraph 3 of the Code, of Civil Procedure (which

228

THE NETHERLANDS (SUPREME COURT)

USA v. EEMSHAVEN PORT AUTHORITY

.229

allows a foreign-ba$ed defendant to be summoned before the court of

the domicile of the plaintiff) and submitted the claiin referred to above, in paragraph 1, the United States invoked.the privilege -of immunity from jurisdiction and argued:
the time the damage was caused,

. respeçt oftht mooí'ng' àrr~gements in the Eemshaven and that the act of makng mòoring arrangements in ¡l foreign. harbour was in nature not an act that can be considered as iure imperii slnce it .caot be ", viewed as conduct that is characteristic of conduct by a go:verntenf in:

A. that the Cape May, at

was put

its governmental capacity d '. ", " '.' i ,
In paragraphs lIto 13 of its judgment, the Court of Appeal rejected

, the: argumentS ;idvarced by the United States regarding the NATQ Status of Forces Agreement. Furthermore, in paragraphs 15 to 19 ofits
, 'judgment, the Court of Appeal rejected the arguents.advanced by the
United States Iegading~e BrusselsConventioaof 10 April '. Courr of Appea did nót make a decision on whether the

of the "Ready Reserve Force Vessels" of thê United Staites Navy, deployed in thàt capacity in the implementation of the' and was were military operations Desert Shield and Desert Storm, which being carried out pursuant to resolutions of the United Nations

Security CounCil; .. '
Court of Appeal that the wrongfu ad alleged by the Canot be viewed as

B that the 'Cape Maywas in the Eemshaven' to.load military goods

1926.'The Cape May-w'

that were to be transporteci to the Gilf area; "

a warship or equivaent miltar supply ship. ' . ,3.4. Part 1 öfthe petitionEor casation disp\ltes the decision.by the'
PQrt Authority an act lure imperii. The main point of ths tlart.

C that the Cape May was a warship on the basis of~~vall'Warfare

Publication 9a and was therefore not a toinriercial ship, and

furthermore was not performing co,mmercial activities at: the time

of the occurrence that caused damage. .
, iIivoke the privilege

is the àrgwnent advanced in 'Subpars A and B to the effeèttlat the

Court of Appeal erred by faiing to indude the status and task of the
'Cape May in its aralysis of the question wnether the Unlted States càn

.A a secondary argument, the United States submitted that a claim that asserted by the Po.rt Authority must be made against the, such as the basis óf.the NATO Status of on' Dutch State (the receiving State)

of immunty from jurisdiction. The Uiiited Stàtes

'Submitted allegations concerning the stat~ and task of the Cape. May"
'bUt the Court of Appea did not investigate these alegations. " .

Forces Agreement,,' " . '" " , '

Accordingly, ths part raises the question whether unwritten rllles of public internatior,allaw'permit the United States to invoke imInunitY from jursdictioii iii relation to a claim which arose in the Netheriands
. in the conteXt of

use by the Unired States of a vessel belongii;g to .

The Port Authority disputed the privilege of immunity and argued that, even if the Cape May was a warship, the United States could not invoke immunity from jurisdiction in this matter because the wrongful act committed by the United States against the Port Authority is not an act iure imperii in nature. Furthermore the Port Authoritydisputed . that the Cape May was a warship and that the NATO Status of Forces

or operated by the UnitedScites, if this vesel at the time when

the

clai arose had the status of a warship or milta supply~hip ard ,
was e~dusively used in the fulfiment

Agreement was applicable in this matter. '

of military (Le., non~coinmercial)

, gQv~rnmental taks. " . d' - " ,. '
_ '-dRÔUNDS
The anwer to this question is "yes". Under current public interna~ . tionallaw, foreign Staes are not subject to the jurisdiction ,of the Dutch Courts in relation to clais that arise in the Netherlads in the context
of the operation of vesseIs belongigdt~ or

operated :by foreign StateS,

where such' vessels ate used in the fufiment of a typica governmenta
task, such asnilitaryactivity The nature, of

, The District Court rejected the plea of immunity and decided that the " privilege because the wrongful act United States could not invoke this was in nature not an act performed in committed by the United States , the exercise of its governmental tasks. In a,dditiQn, the Distirict Court' held that the NATO Status of Forces Agreement did not apply.
DistJrct Cou'rt

the actor occur.rence that

The Court of

Appeal affirmed the judgment of the

, on the question of jurisdiction, The petition in cassation disputes the

judgment

of the Court of Appeal. ' ,

3,3. The Court of Appeal decided in paragraph 10 ofits judgment
be' assessed in the context of the contract in

'gave rise to the claim is irrelevant. , ' " ' This view is not only supported by thepractiçe of States, judicial opinion in various countries and *uthoritative public international law literature, but alo provides the' basis for the rules concerning State . " ships used for governmenta tasks set out in Article 3 of the Brussels.
Convention ôf 1926. This Convention led to the Europea Convention

that the wrongful acts allegedly committed while the Capt~ May was

in the Eem~haven must

on State Immunity signe~ on. 16 May 1972 in 'Basle This Convention.

230

THE NETHERLANDS

(SUPREME COURT)

. USA v. EEMSHAVEN PORT AUTHORITY
231

provides that disputes conc~r,nirig claims relating to the operadon of

Refers thi mattertQ the. Court of Appea of.,nh~i, for futher

proceedings and,decision; and " .

. . Orders' the' . States in these

Port Authority to pay the coscsincuredby the United Supreme Court proceedings inthe amount_ofNLq..

sea-going vessels owned or operated by a signatory State areexçluded from the, applkation of the Convention' (Article 30).. The report by in Paragraph 21 of the the International Law Cor-mission, referred to provides supporcfor this Solicitor-General Strikwerda, also Opinion of
(Reporr: Unpublished .(in Dutch))

705 in exenses and NLG 3,500 in salar. . . . . ,

~~, .' .-

The ,arguments advanced in part 1, A and B, are therefore well-

founded. The rest of this Part does not require discus~ion.

the Court ofAp3.5, Part 20f the petition disputes the decision by peal in paragraph i 3 orits judgment that .the NATO Status of Forces Agreement cannot be deciSive in 'these proceedings on the question of
event re-

,immunity because a.pplication bf that Agreement would in any

arid at most the Port Authoritys sult in jurisdiction of the Dutch Courts be dismissed since the Port Auxhority summoned claim would have to
State., ,

the

United States and not the Dutch

, This part cannot result in reversal

of the j udgmentof the Court of '
as a claim related

Appeal as the United States lacks interest in such a (lecision. The claim',

asserted by the. Port Authority can only be viewed

to the navigation or operation of a ship as referred to in Article VIII, J
Forces Agreement, so that -~

Paragraph 5, Point Hofthe NATO Status of

the provisions of that Paragraph concerning third-party clais donol

apply,' ".' . " '

3.6. Part 3, which disputes the interpretation by the:Court of Appea

of the provisions of Article 3, Pàragraph i, Sections i .

and 2 of die Brus~

,sels Convention of i 926, must also be rejected for lackofinterest. Even
' interpreted as argued by the United

if this provision were to be

Stites, ,

rules of unwritit would not add anyting in the present matter to the ten public international law concerning the immunity of State ships.. . used exclusively in the fulfilmeI\t 9f the non-commercial governmental

tasks, (see paragraph

3 A ab9vè)'; 'Accordingly, it is not necessary to de-

cide whether Article 6 of

invoke that Convention's provisions

State. '

that Convention permits the United States to even though it is a non-signatory

3,7. In the light oftheconsideracionsset out in paragraph 3.4 ab~ve, the judgment of the Court of Appeal must be ,reyersed. This matter
:'

must be referred to another Court of Appeal for further investigation

into the status of the Cape May.at the time of the events that caused

damage.

On these grounds, the Supreme Court:

Reverses the judgment of the. Court of Appea of Leeuwarden of

10 December 1997; .
'.'.