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

Filing 57

REPLY to response to motion re 28 MOTION for preliminary injunction filed by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)

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

Doc. 57

Case 8:07-cv-00614-SDM-MAP

Document 57

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, INe.

Plaintiff

: CIVIL

ACTION

: 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
Claimant.

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

Plaintiff s Motion for Order Granting Preliminary Injunctive Relief (Dkt. 38), 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 , case number 8:06-CV- 1685- SDM- MAP (Dkt. 19). Vessels
granted a preliminary injunction in

Dockets.Justia.com

Case 8:07-cv-00614-SDM-MAP

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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 will be able to
S. v. $38, 000. 00

commence an investigation and form a responsive
1538 , 1548 (11th Cir.

pleading.

Dollars in U. S. Currency, 816 F. 2d

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 "has not recovered evidence which would confirm
the identity of a particular ship,

" but believes that the material recovered to date from the
This

Defendant Site to be from a nineteenth century ship. (Paragraph 16 , Dkt.25).

information is sufficient for Spain to commence an investigation of its claim, considering that

they wil also receive the sealed geographical information upon their agreement to keep the
information confidential.
See

Fathom Exploration,

LLC v.

Unidentified Shipwrecked

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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Vessel or Vessels, etc, in rem, 352 F. 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 ofthe Defendant Wreck Site.

II.

Potential Harm to Odyssey
Party .

and to the Defendant

Wreck Site,

Absent a

Preliminary Injunction, Far Outweighs Any Harm to Spain or Any Other Third
Spain incorrectly asserts in its Opposition to Plaintiffs Motion for Order Granting
Preliminary Injunctive Relief that an injunction would "encompass() thousands of miles of
ocean " and that the area identified "includes terrtorial waters of at least Spain, and possibly
of Portugal and of Morocco. "
(Dkt. 38:6) This is

simply not true and is not what is requested

in Odyssey s Motion. Odyssey seeks to enjoin third parties from conducting search and/or

recovery operations and other actions that would disturb the Defendant Site.

(Dkt. 28:

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.
171 F. 3d 943

Titanic, Inc. v. Haver,

, 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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Similarly, Odyssey s Motion does not request this Court to interfere with Spain s lawenforcement activities.

The injunctive relief is sought to properly protect the site and
Treasure Salvors, Inc. v.
566 (5th Cir. 1981).

Odyssey s activities at the site as recognized by admiralty law. See

Unidentified Wrecked and Abandoned Sailing Vessel , 640 F.2d 560,
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 artifacts from
the site by filing a general appearance in its Verified Claim. (Dkt. 13) The Verified Claim of

Spain in this matter did not explicitly state

its

appearance was being

restricted under

Supplemental Rule E(8). Accordingly, Spain has entered a general appearance and is before
this Court in personam.

See U. S.

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.,
540 ,

Inc. v. Unidentified,

Wrecked and
this

Abandoned Sailing Vessel, 549 F. Supp.
Court has in personam

552- 553 (S. D.

Fla. 1982). Accordingly,

jurisdiction over Spain and has jurisdiction over the res in dispute.

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 archaeological site.

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This Court has 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. 28 U.

C. 9 1605(b).

6 If this

Court determines it has no personal jurisdiction over Spain, Odyssey s motion should be held
in abeyance pending this Court' s obtaining
Spain.
in personam

jurisdiction following service on

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 the

arrested vessel (if any) is lying in such a state that its identification cannot be determined.
Indeed , it is not even certain that a vessel is located near the debris field. Despite these facts

Spain claims to be absolutely certain that it is the owner of the wreck and , therefore, 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 the debris remains unidentified
Odyssey has demonstrated the likelihood of it succeeding on the merits and has the right to

continue archaeological recovery and salvage , free from intervention against all the world
under international law.

See Treasure Salvors, Inc. , 640 F. 2d at 566;

R.M. S.

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(cfow lerwhite. com
Eric C.

Thiel- FBN 016267

ethiel(cfowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 [phone]
Facsimile: (813) 229- 8313

Attorneys for Plaintiff

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 22 , 2007 , I electronically fied 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(cfowlerwhi te. com Eric C. Thiel - FBN 016267 ethi el(tfowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 [phone]
Facsimile: (813) 229- 8313

Attorneys for Plaintiff
2410191

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