Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Filing
55
***DOCUMENT TERMINATED*** REPLY to response to motion re 28 MOTION for preliminary injunction filed by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen) (ERROR: WRONG IMAGE ATTACHED; COUNSEL HAS CONTACTED AND NOTIFIED THE CLERK'S OFFICE; COUNSEL HAS FILED THE CORRECT IMAGE AT ENTRY NO 57 ) Modified on 10/23/2007 (ag).
, ("
Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Doc. 55
Case 8:07-cv-00614-SDM-MAP
Document 55
Filed 10/22/2007
Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN ADMIRALTY
ODYSSEY MARINE EXPLORATION, INC.
Plaintiff
vs.
CIVIL ACTION
Case No. :
8:07- CV- 00616- SDM- MAP
THE UNIDENTIFIED , SHIPWRECKED VESSEL , its apparel , tackle, appurtenances and cargo located within center point
coordinates: (to be provided to the Court
under seal),
in rem Defendant(s).
PLAINTIFF' S REPLY TO CLAIMANT KINGDOM OF SPAIN' OPPOSITION TO PLAINTIFF' S MOTION FOR ORDER GRANTING PRELIMINARY INJUNCTIVE RELIEF
Plaintiff, Odyssey Marine Exploration,
Inc.
Odyssey ) by and through its
s ("
undersigned counsel and files this , its Reply to Kingdom of Spain
Spain ) Opposition to
Plaintiffs Motion for Order Granting Preliminary Injunctive Relief (Dkt. 42), and in support
thereof states as follows:
1 This Court has already recognized that preliminary injunctions are appropriate in admiralty arrests , and in fact
Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel or granted a preliminary injunction in Vessels , case number 8:06-CV- 1685- SDM- MAP (Dkt. 19).
Dockets.Justia.com
Case 8:07-cv-00614-SDM-MAP
Document 55
Filed 10/22/2007
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MEMORANDUM OF LAW
Odyssey Has Met All Requirements Necessary to Establish Its Rights Over the
Site.
Spain s Opposition to Plaintiffs Motion for Order Granting Preliminary Injunctive
Relief is based in part upon its argument that Odyssey has failed to meet the pleading
requirements in that it has not adequately identified the property it claims. 2 This argument is
without merit. A
salvor is required to describe the property with reasonable particularity
such that the claimant wil be able to
commence an investigation and form a responsive
Cir.
pleading.
S. v. $38, 000. 00 Dollars in U.S. Currency, 816 F. 2d 1538 , 1548 (11th
1987); Supplemental Rule C(6); Supplemental Rule E(8). Odyssey has clearly set forth the
required information in its Amended Complaint.
Odyssey has located the Defendant Site, disclosed to Spain the general geographical
location of the site and explained that it believes that the material recovered to date is from
an Italian registered
Verified Complaint
passenger liner that sunk in
1915 during World War I.
(Amended
Spain to
18; (Dkt.
29)).
This information is sufficient for
commence an investigation of its claim, considering that they wil also
receive the sealed
geographical information upon their agreement to keep the information confidential.
3 See
Fathom Exploration, LLC v. Unidentified Shipwrecked Vessel or Vessels, etc, in rem, 352
2 Spain s contention wil be fully addressed in Odyssey s Opposition to Spain s Motion to Dismiss , which is incorporated herein. 3 Odyssey also offered to produce a Preliminary Site Assessment which contained detailed archeological information , but Spain s refusal to keep information contained within the PSA confidential and its objection to the protective order has prevented the disclosure of the PSA.
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Case 8:07-cv-00614-SDM-MAP
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Supp. 2d 1218 ,
1226 (S. D. Ala. 2005).
Accordingly, Odyssey has met the pleading
requirements for in rem claims.
This Court properly granted a Warrant of Arrest on the Defendant Site based upon
Odyssey s initial Verified Complaint and issued an order appointing Odyssey substitute
custodian for the artifacts recovered.
As such,
this Court has recognized Odyssey is the
custodian of the artifacts and Odyssey has properly pled all conditions to being salvor in
possession of the Defendant Wreck Site.
II.
Potential Harm to Odyssey
and to the Defendant
Wreck Site,
Absent a
Preliminary Injunction, Far Outweighs Any Harm to Spain or Any Other Third Party.
Spain incorrectly asserts in its Opposition to Plaintiffs Motion for Order Granting
Preliminary Injunctive Relief that an injunction would " encompass(J thousands of miles of
ocean " and that the area identified "may include territorial waters of at least Spain ,
and
possibly other European and Afucan nations. "
(Dkt. 42:6) This
is simply not true and is not
what is requested
in Odyssey s Motion.
Odyssey seeks to enjoin third parties from
the
conducting search and/or recovery operations and other actions that would disturb
Defendant Site.
4 (Dkt. 32:
1) The injunction would encompass only that area over which this
Court has already assumed jurisdiction - the defendant res over which it indisputably has
jurisdiction.
See R.
S. Titanic, Inc. v. Haver ,
171 F. 3d 943
, 961 (4th Cir. 1999). In its
Opposition , Spain fails to define any "harm" which would inure to Spain or to any other third
party if the injunction were to be granted. To the contrary, Odyssey, and most importantly,
the Defendant Site, would suffer irreparable harm if injunctive relief is not issued.
4 Odyssey is also prepared to fie under seal a nautical chart depicting the location of the site.
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Case 8:07-cv-00614-SDM-MAP
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Similarly, Odyssey s Motion does not request this Court to interfere with Spain s lawenforcement activities.
5 The injunctive relief is sought to
properly protect the site and
Odyssey
s activities at the site as recognized by admiralty law.
See Treasure Salvors, Inc. v.
560 , 566 (5th Cir. 1981).
Unidentified Wrecked and Abandoned Sailing Vessel , 640 F. 2d
Odyssey has every reason
to be concerned , based on Spain s prior actions , that if an
injunction is not issued, Spain may take actions which might jeopardize the security of the
Defendant Site, interfering with Odyssey s recognized rights as a salvor in possession.
III.
This Court Has
In Personam
Jurisdiction Over Spain.
jurisdiction over Spain because Spain has actively and
This Court has
in personam
voluntarily decided to intervene in the determination of the ownership of the vessel by filing
a general appearance in its Verified Claim. (Dkt. 14) The Verified Claim of Spain in this
matter did not explicitly state its appearance was being restricted under Supplemental Rule
E(8).
personam.
Accordingly, Spain has entered a
See U. S.
general appearance and is before this Court
v. Republic Marine, Inc. , 829 F. 2d 1399 ,
1402- 1403
(7th Cir. 1987).
Even if Spain had entered a restricted appearance , by the very nature of salvage actions and
the sometimes necessary adjudication of competing ownership claims , this Court necessarily
has in personam
jurisdiction over competing claims of ownership which mayor may not
even include Spain.
See Cobb Coin Co., Inc. v. Unidentified, Wrecked and Abandoned
Sailing Vessel, 549 F. Supp. 540, 552-553 (S.D. Fla. 1982). Accordingly, this Court has
personam
jurisdiction over Spain and has jurisdiction over the res in dispute. This Court has
5 Spain argues the purpose of the injunction is to interfere with its police power and acts of state. A plain
reading of Odyssey s Motion for Preliminary Injunction clearly shows it is directed at preserving the security of the sensitive archeological site.
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Case 8:07-cv-00614-SDM-MAP
Document 55
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the power to grant Odyssey
s Motion for Preliminary Injunction and should do so.
Alternatively, Plaintiff is in the process of serving Spain pursuant to the Foreign Sovereign
Immunities Act and its express exception to that permits U. S.
courts to exercise jurisdiction
over in rem claims against
a sovereign s vessel.6
28 U.
C.
1605(b). If this Court
determines it has no personal jurisdiction over Spain, Odyssey s motion should be held in
abeyance pending this Court' s obtaining
in personam
jurisdiction following service on Spain.
IV.
Odyssey s Likelihood of Success Under the Law of Salvage is Clear.
Spain asserts in it Opposition that it has unilaterally and unconditionally denied
salvage of any of its property.
allegations in the
This statement,
however, is not supported by any factual
Amended Verified Complaint.
Namely, Plaintiff has alleged that it
Despite these facts
believes the arrested vessel to be an Italian registered passenger vessel.
Spain apparently claims to be the owner of the wreck or have some other, unknown interest
in the wreck. Despite these facts , Spain argues Odyssey can in no way prevail.
Such
conclusory statements fly in the face of the facts contained within the Verified Complaint and
other pleadings. Since Spain has not identified its interest in the Italian registered vessel, its
claims of unauthorized salvage must fail.
Odyssey has demonstrated the likelihood of it
succeeding on the merits and has the right to continue salvage, free from intervention against
all the world under international law.
See Treasure Salvors, Inc. , 640 F.2d at 566;
Titanic, Inc. ,
171 F. 3d at 961.
6 Opposition to Spain s sovereign immunity argument is more fully contained with Odyssey s Opposition to Spain s Motion to Dismiss, which is incorporated herein.
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In conclusion,
Odyssey has shown it is entitled to a preliminary injunction,
and
Odyssey s Motion for Order Granting Preliminary Injunctive Relief should be granted.
Respectfully submitted
s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp fowlerwhite. com Eric C. Thiel - FBN 016267 ethiel fowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 22 , 2007 , I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system which wil send a notice of
electronic filing to James A. Goold , Covington & Burling LLP , 1201 Pennsylvania Ave. , Washington, DC 20004; and David C. Banker, Bush Ross P. , 220 S. Franklin Street P. O. Box 3913 , Tampa, FL 33601 Attorneysfor Claimant, Kingdom of Spain.
s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp fowlerwhite. com Eric C. Thiel - FBN 016267 ethiel fowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
2410192
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