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

Filing 236

RESPONSE re 230 Objection, 234 Objection to Report and Recommendations, 231 Objection, 227 Memorandum in opposition, 228 Objection, 229 Objection filed by Kingdom of Spain. (Attachments: # 1 Exhibit A)(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, et al., Claimants. CIVIL ACTION

_______________________________________/ DECLARATION OF JAMES A. GOOLD 1. I am counsel to the Kingdom of Spain ("Spain") in this case. I submit this declaration to provide true and correct copies of the exhibits attached hereto in support of Spain's Response to Objections to the Magistrate Judge's June 3, 2009 Report and Recommendation on Spain's Motion to Dismiss Or For Summary Judgment and Spain's Motion to Vacate Arrest. 2. Exhibit 1 attached hereto consist of copies of the cover pages and pages 109117 of Espaa Marítima or Spanish Coasting Pilot, published by W. Faden, Geographer to His Majesty And To His Royal Highness The Prince Regent, (W. Bulmer and Co., London 1812). The Spanish Coasting Pilot contains "Directions For Navigating the Coasts and Harbours of

ANNEX 1 TO EXHIBIT A (Goold Declaration)

ANNEX 2 TO EXHIBIT A (Goold Declaration)

MINISTRY OF DEFENCE

MINISTRY OF CULTURE

Regulations Office

No. 96 Date: 07/03/09

General Protocol between the Spanish Ministries of Defence and Culture concerning their mutual collaboration and coordination for the purpose of protecting the Underwater Archaeological Heritage

Approved by The General Technical Secretary

In Cartagena, on

2009

BOTH PARTIES: Doña Carme Chacón Piqueras, Minister of Defence by virtue of her appointment through Royal Decree 436/2008 dated 12th April, And Doña Ángeles González-Sinde Reig, Minister of Culture by virtue of her appointment through Royal Decree 558/2008 dated 7th April. In their capacity as representatives, they recognize their mutual ability to bind themselves and enter into an agreement, and STATE: First. The legal framework currently in force establishes that different organisations within the Spanish Public Administration have responsibilities in the protection of Spanish Historical Patrimony. Second. In Spain, the magnitude of Underwater Archaeological Patrimony, together with the growing challenges encountered for its protection, demand of all public organisations with responsibilities in the matter to join efforts and define their activities so as to maximize the effectiveness of its safeguard. Third. Article 46 of the Spanish Constitution establishes that the official authorities will guarantee the conservation and promote the enrichment of the historical, cultural and artistic patrimony of Spain's peoples, as well as all the property thereof, regardless of their legal Page 1 of 7

regime or ownership. Within this framework, the regulation of our archaeological patrimony in general, and underwater patrimony in particular, shall be arranged in pursuance of the responsibilities allocated by the Spanish Constitution as specified in Article 6 of the 16/1985 Act on Spanish Historical Patrimony dated June 25, in accordance with the interpretation thereof issued by the Constitutional Court [of Spain] in Judgment 17/1991, dated January 31.

Fourth. On November 30, 2007, the Spanish Cabinet passed the National Plan for the Protection of Underwater Archaeological Patrimony (hereto forth, the PNPPAS). The aim of this Plan is to give a general outline on the basic guidelines to be pursued, so that the essential procedures can be designed to adopt an effective policy for the integral protection of our Underwater Archaeological Patrimony. For this reason, and in order to define the scope of the activities under this Plan, a two-fold perspective has been agreed upon: a) On the national level, the PNPPAS provides the essential policy to be applied by both our Central State Administration and Autonomic Communities in order to implement an effective policy for the protection of any wreck located in Spanish sovereign or jurisdictional waters. b) On the international level, the PNPPAS outlines the policy to be applied in order to protect our interests and rights over any Spanish vessel and aircraft sunk in third-country or international waters.

Fifth. The PNPPAS responds to a single goal, namely, to coordinate all official departments and public organisations involved in the protection of our underwater patrimony so as to create awareness thereof by taking specific measures for the safeguard, preservation and spread of knowledge about the rich heritage located in our waters. The aim is thus to achieve the maximum effectiveness and coordination in this undertaking so as to preclude any plunder of this kind of cultural heritage, and to prevent any adverse effects on the conservation thereof that might arise from legally authorised underwater activities.

Sixth. The PNPPAS provides that "the Ministry of Culture, within the scope of its capacities, shall promote and take all appropriate measures to further develop and enforce this Plan. The Ministries concerned, within the scope of their respective capacities, will take all appropriate measures to develop and enforce this Plan to the maximum extent feasible in keeping with the limits on expenditure from the State's General Budget as established each fiscal year."

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Seventh. There are four major reasons why the Ministry of Defence, and particularly the Spanish Navy, plays an essential role in the development of the PNPPAS: a) 5/2005 Organic Act on National Defence dated November 17th and Royal Decree 787/2007 dated June 15th ­ enacted to further develop the former in all matters connected to operational structure ­ entrust the Armed Forces with the surveillance and security of our sovereign spaces, either on the high seas or in any other place as provided by International Law, as well as with the mission of supporting any State activity in such spaces. The Spanish Navy's tasks, together with all Public Organisations with responsibilities in this area, include the surveillance and security of the Underwater Archaeological Patrimony. b) The Spanish Navy's Historical Archives are a point of reference both when it comes to documenting the activities to be conducted in our sovereign waters and to protecting our vessels and aircraft sunk in third-country waters. c) Since sunken State vessels and aircraft, no matter where they are located, are the sole property of the Government, only the Ministry of Culture, coordinated with the Ministry of Defence, can authorize activities directed at this underwater property. d) They have adequate means and proven experience to collaborate in fulfilling the Plan objectives. Eighth. The PNPPAS, establishing the measures to be taken to implement the activities herein regulated, provides that the Ministries of Defence and Culture will enter into any appropriate collaboration agreement so as to put in place any appropriate cooperation mechanism for an effective protection of our Underwater Archaeological Patrimony. Based on all provisions set forth above, the parties undertake to enter into this General Protocol that shall be governed by the following

C L A U S E S: First. Objective of the General Protocol This General Protocol aims to enforce all provisions contained in the National Plan for the Protection of the Underwater Archaeological Patrimony (PNPPAS) and to establish itself as the framework for any collaboration and coordination procedure between the Ministries of Defence and Culture in the field of the protection of our Underwater Archaeological Patrimony.

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Second. Specific objectives The provisions include the following specific objectives, among others: a) To establish procedures in order to coordinate, within the framework of the annual Archaeological Survey Programme, all collaboration activities, particularly within the scope of our waterfront Autonomic Communities, designed to draw Archaeological Charts of the areas where wrecks, and particularly State vessels and aircraft, have been found in Spanish sovereign or jurisdictional waters. b) To establish procedures to standardize information exchanges and collaboration requests. c) To collaborate in developing the Programme for the Integrated Management of the Information on Underwater Cultural Patrimony. d) To promote mutual educational and training opportunities in the field of underwater archaeology, to ensure the effectiveness of all collaboration activities. Each of these specific objectives, as well as further objectives that might emerge under this Protocol, shall be developed by a public department or organisation directly involved in the collaboration and belonging to either Ministry, through appropriate addenda thereto. Third. Contributions of each party 1. The Ministry of Defence, through the Spanish Navy, shall supply all material and human resources deemed appropriate in each case, and shall put all its documental funds and archives at the disposal of the concerned party. 2. The Ministry of Culture shall supply the technical advising and assistance from the General Deputy Directorate for the Protection of Historical Patrimony, the Spanish Cultural Patrimony Institute, together with the National Underwater Archaeology Museum's resources and personnel. Equally available will be all means that this Ministry may have or contract in the future. 3. All opportunities for mutual education and training in the areas identified as being of common interest will be considered. 4. All activities covered by this General Protocol should be conducted at the highest level of excellence allowed for by the operational priorities and human and material resources available within both parties hereto. Fourth. Direction and coordination of the projects

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1. All projects should have the support of qualified personnel from the Spanish Navy and any appropriate organisation of the Central State Administration, in collaboration with any further personnel that the Autonomic Communities may choose. 2. Upon agreement by both parties, resources may be included and involved in the projects. outside the Public Administration

3. As a general rule, the technical direction of a project shall fall to the authority determined in each case by the Joint Monitoring Committee, referred to in the sixth clause herein, without prejudice of any Autonomic responsibilities. 4. In order to develop any activity covered by this Protocol, the means and procedures for communication among the involved organisations will be established. Fifth. Financial provisions 1. The Ministry of Culture, within its budgetary possibilities, shall defray all expenses incurred during the campaigns and collaboration projects conducted by Spanish Navy units, as well as those related to the installation, maintenance, repair or modification of the underwater exploration or survey equipment, or those employed in these activities. These campaigns and projects will be conducted in coordination with the Spanish Navy and, insofar as possible, within the channels of logistical support of the Navy, who will be in charge of their direction and inspection. All contracts closed in connection with these activities will be subjected, if necessary, to 30/2007 Act on Public Sector Contracts dated October 30th. 2. The Ministry of Defence shall defray the ordinary expenses corresponding to the material means (ships and facilities) and human resources that it contributes. 3. Where the activities scheduled require extraordinary expenses to be incurred, the procedure established in the regulations in force shall be implemented in order to place the relevant economic compensations. 4. This Protocol opens the possibility to set up any appropriate procedure designed to elaborate programmes so as to renew/acquire more specific means in order to further develop the PNPPAS. Sixth. Control and monitoring measures 1. A Joint Monitoring Committee shall be set up which shall be in charge of the fulfilment of the objectives and the promotion of the actions foreseen herein. 2. Said Committee shall submit to the Director of Fine Arts and Cultural Property, under the Ministry of Culture, and to the Director of Institutional Relations of the Ministry of Defence, for their endorsement and signature, any addenda to this General Protocol, including any proposal, coordination measure, rule and procedure that it deems conducive to the

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objectives herein, as well as monitoring reports of any related activity that may have been decided. 3. Composition of the Joint Monitoring Committee: a) For the Ministry of Culture: The Deputy Director for the Protection of the Historical Patrimony, and the Curator of the National Underwater Archaeology Museum. b) For the Ministry of Defence: The Deputy Director for the Defence of Historical and Artistic Patrimony, and the Director of the Department of Naval History and Culture. In the meetings called by the Joint Monitoring Committee, apart from the permanent members, other representatives that the Committee may deem relevant will be involved, depending on the topics to be tackled. 4. Tasks and functions of the Joint Monitoring Committee: a) To propose any addenda to this Protocol for their sanctioning and signature. b) To propose within the framework of the specific objectives of this Protocol the specific operational rules and procedures for the collaboration in each activity, establishing to this end a work group who shall prepare and submit these proposals. c) To create the work groups it deems appropriate to meet the objectives and actions scheduled in this General Protocol and specified in the addenda hereto. d) To establish the procedure for each organisation to regularly submit the schedule of activities and exercises offering educational and training possibilities for both parties. e) To set the procedure for each year's list of training courses for the personnel of both Ministries to be sent. 5. Periodicity of meetings: The Committee shall hold an ordinary meeting twice a year and extraordinary meetings will be held where circumstances so require, at the request of one of the parties. 6. Decision-making procedure: All decisions should be made by common agreement between both parties. Seventh. Collaboration with Autonomous Communities and other public organisations Any appropriate agreement that might be needed to undertake with an Autonomous Community or other public organisation involved in the Protection of the Underwater Archaeological Heritage shall be entered into by the Ministry of Culture with the approval of the Ministry of Defence, through the Spanish Navy.

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Under this Protocol, if sunken State vessels or aircraft, or any archaeological remains thereof, were salvaged and recovered, the interests of the Naval Museum and the National Underwater Archaeology Museum in being their consignees should be considered and given priority, and any piece salvaged that would complete their already existing collections, or that has particular historical, naval, nautical or archaeological significance, should be consigned to them on a temporary basis. In any other case, the consignee of said property shall be a museum in public ownership to be decided by the relevant public Administration or official department. Eighth. Settlement of disputes Any dispute arising from the interpretation or enforcement of this collaboration Protocol, if the ordinary procedure with the Joint Monitoring Committee foreseen in the Sixth Clause has been exhausted without success, should be settled as provided in 50/1997 Act on the Government and Law dated November 27th and in 52/1997 Act on Legal Aid for the State and Public Institutions dated November 27th. Ninth. Duration and amendments This Protocol shall enter into force on the date of its signature and shall be of indefinite duration. Any amendment to this Protocol should be introduced through a relevant addendum expressly approved by both undersigned parties. Tenth. Causes for cancellation This Protocol may be denounced by any of the undersigned parties through written and certified notice to the other party at least four months in advance of the date of desired cancellation. In such a case, the collaboration activities already underway at the time of the notice should be completed. In witness thereof, both parties have affixed their signatures to this General Protocol in two original copies equally valid in the place and on the date indicated above.

THE MINISTER OF DEFENCE

THE MINISTER OF CULTURE

- Carme Chacón Piqueras -

- Ángeles González-Sinde Reig -

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Spanish Original