Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Filing
64
ANSWER to court interrogatories re: 61 Order setting preliminary pretrial by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)
/:
Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Doc. 64
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN ADMIRALTY
ODYSSEY MARINE EXPLORATION , INe.
Plaintiff
CNIL ACTION
: Case No: 8:07-CV-00614- SDM- MAP
THE UNDERWATER SITE AND RELATED UNIDENTIFIED SHIPWRECK, 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 RESPONSE TO COURT ORDER SCHEDULING PRELIMINARY PRETRIAL CONFERENCE AND ANSWERS TO STANDARD INTERROGATORIES
COMES NOW the Plaintiff, ODYSSEY MARINE,
ODYSSEY")
by and through
EXPORA TION, INC.
it
its undersigned counsel and files this ,
Response to the
Court' s Order Scheduling Preliminary Pretrial Conference And Answers to Standard
Interrogatories , and responds to Plaintiffs Interrogatories as follows:
Dockets.Justia.com
).
);
PLAINTIFF' S INTERROGATORY #1
Describe the basis of federal jurisdiction - including
acts havig the force and effect of law, codes, regulations and legal principles, standards and customs or usages which the plaintiff contends are applicable to the instant action.
all laws,
As a case involving an admiralty and maritime claim, this Court has jurisdiction over
the subject matter pursuant to the Constitution of the United States
, Aricle II, Section 2
Claims
Clause 1 ,
28 U.S. e.
g 1333 ,
and Rule 9(h) of the Federal Rules of Civil Procedure.
arising out of salvage operations are clearly within the admiralty jurisdiction
courts. See Treasure Salvors, Inc. v.
of the federal
Unidentifed, Wrecked and Abandoned Sailng Vessel
(Treasure Salvors III).
640 F. 2d 560 , 566-67 (5
Cir. 1981)
Furthennore, U. S. admiralty
courts unquestionably have jurisdiction to adjudicate salvage claims based on salvage
operations that occur on the high seas.
See Treasure Salvors III 640 F. 2d at 566-67 (liThe
subject matter jurisdiction thus granted is not limited to causes of action arising ITom acts or
occurrences on the terrtorial waters of the United States. "
334 ("the presence of the
jurisdiction.
res
Treasure Salvors I 569 F.2d at
within the district is not an absolute prerequisite to the court'
S. admiralty courts to assert in rem
It is common for U.
jurisdiction over
of foreign
shipwrecks located in international waters and even within the terrtorial seas
nations. See Marex v.
Unidentifed, Wrecked and Abandoned Vessel
v.
952 F. Supp. 825 ,
828
(S. D. Ga. 1997);
714 (E. D. Va. 1996);
3d 1129 (4
MS. Titanic, Inc.
Bemis v.
The Wrecked and Abandoned Vessel
924 F. Supp.
MS. Lusitania 884 F. Supp. 1042 (E. D. Va. 1995),
aff' , 99
h Cir. 1996),
cert. denied 118 S. Ct. 1558 (1998).
The crux of this specific case is an adjudication of property rights to an unidentified
shipwreck and/or cargo located
outside the terrtorial seas and contiguous zone of any
sovereign state. Additionally, prior
to this Court obtaining constructive
in rem
jurisdiction
over the Defendant site, neither the site, nor any vessel, nor cargo thereof was in the actual
possession of Spain, nor any other person, entity or sovereign State. Although Spain seems
to allege an ownership interest in Defendant Site, not only has this not been established, but the identity of the vessel, if any, remains unconfinned. Accordingly, the Amended Verified
Complaint operates directly against
the
vessel (if any) and cargo and involves
a
detennination of the potential ownership interest of all parties in the property
jurisdiction of this Court.
within the
It is well settled
that a
Court sitting in admiralty
has jurisdiction to detennine
ownership interests of salvaged property that has been reduced to the possession and control
of the salvor and is before the Court.
MS. Titanic, Inc.
v.
v.
Haver 171 F. 3d
943 ,
961 (4th
Cir. 1999);
Treasure Salvors, Inc.
Unidentifed Wrecked and
Abandoned Sailng Vessel
640 F. 2d 560, 566 (5th Cir. 1981). The so-called "constructive
in rem jurisdiction pennits a
United States Court sitting in admiralty to adjudicate rights over the entire wreck or cargo.
MS. Titanic, Inc. 171 F. 3d at 961. The basis for this power is within the jus gentium of
the law of nations to which Spain, and all other persons or entities, are similarly bound.
One of the justifications for constructive in rem
Id.
jurisdiction over shipwrecks or cargo beyond
being
the terrtorial waters or contiguous zone of any nation is to protect such property ITom
plundered , to preserve the historic interest, protect the rights of the first salvor, and to return
the goods to economic usefulness.
Thomas J. Schoenbaum, Admiralty and Martime Law
179 (4th ed. 2004).
Furthennore,
this Court has , or wil have
during the pendency of this action
jurisdiction over any potential claimant including Claimant , Spain, and/or competing salvors
by virte of its contacts to this forum; the nature
of the Plaintiffs admiralty action; the
relationship of the potential claimant and/or salvor to the Plaintiff, the submission of a claim
(such as that of Spain) by any potential claimant in this forum; and/or under the principles of
jurisdiction by necessity.
This Court' s
exercise of jurisdiction over Spain and other
injury to , or
competing claimants
and/or
salvors is necessary to prevent irreparable
destruction of the Defendant Site; to allow the Plaintiff to continue to pursue its ongoing
survey and archaeological recovery operations without interference; to bring the recovered
arifacts within this Distrct; to engage in conservation of the
artifacts; and to prevent
destrction of this Court' s actual and potential jurisdiction.
This court has personal jurisdiction specifically over Spain,
despite Spain
suggestion to the contrary, based upon the fact that Spain has filed a general appearance
through its Verified Claim pursuant to Supplemental Rule C(6) (Dkt. 13). The Verified
Claim operates as a general appearance unless it has been expressly restricted to the defense
of the in rem claim pursuant to Supplemental Rule E(8). u.s. v.
Republic Marine, Inc. , 829
2d 1399 , 1402- 1403
(7th Cir. 1987). Nowhere in Spain s Verified Claim did it expressly
in rem
restrict its appearance to the defense of the
claims.
It should be noted that out of an abundance of caution, Odyssey is taking steps to
serve Spain pursuant to the Foreign Sovereign Immunities Act. This Court has issued a
Sumons to the Kingdom of Spain (Dkt. 44) and, in fact, such service may be effectuated at
the time of the Preliminary Pretrial Conference.
In Count V, the Amended Verified Complaint sets forth claims for unjust enrchment
and quantum meruit which are equitable theories of recovery often pled in the alternative in
salvage actions based on the value of the services provided to a vessel or cargo owner.
The Elfida 172 U. S. 186 ,
See
194 (1898). The ultimate disposition of Count V depends
upon a detennination of the ownership of the res; this Court , nevertheless, has jurisdiction to
entertain Count V, even against a sovereign state such as Spain. The equitable relief sought
in Count V is
clearly related to an
in rem
claim for
salvage.
It alternatively seeks
compensation for services rendered to the Defendant
res in the event a
martime lien is
deemed not to exist. As such, the equitable relief is sought on the theory of benefit to the
owner of the Defendant res.
In the event Spain is ultimately detennined to have ownership
this
rights in the Defendant res,
Court would have subject matter jurisdiction under the
Foreign Sovereign Immunities Act, 28 U. C g 1607. Section 1607 provides that, when a
foreign State intervenes in an action, the foreign State wil
not be
immune with respect to any
counterclaim "arising
out of the transaction or
occurrence that is the subject matter of the
claim of the foreign state.
Id.
Clearly, Spain has made a Claim of Owner in the Defendant
res currently under the jurisdiction of this Court. In the event the property is detennined to
be that of Spain or any other claimant, and not abandoned, Count V of the Complaint seeks
compensation that is clearly related to services provided to the vessel and/or cargo and its
owner for the salvage ofthe
property, which arose out ofthe same subject matter ofthe claim
of the foreign State. Accordingly, Count
V falls squarely within an express waiver of
Spain s sovereign immunity found within the Foreign Sovereign Immunity Act.
In Count VI of the Amended Verified Complaint, Odyssey alleges that it suffered
damages as a result of Spain s tortious conduct in invading its possessory rights to the
Defendant res and in interfering in its perfonnance of its duties
as substitute custodian.
These acts fall squarely within exceptions to the waiver of sovereign immunity found within
the Foreign Sovereign Immunities Act. Mainly, Spain is not immune ITom the jurisdiction of
a court in the United States concerning a suit in admiralty to enforce a maritime lien against a
vessel or cargo. See 28 U.
C. g 1605(b).
Spain s actions clearly arise out of Odyssey s arrest of the Defendant res in this case
- Spain has
interfered with Odyssey s court-ordered duties as substitute custodian and with
as
its abilty to continue to perfonn its archaeological recovery and salvage operations
pennitted by this Court. Since
Spain
s actions are all related to, and are in retaliation for
properly before this Court, Spain has
Odyssey s arrest of the Defendant Site and cargo
waived sovereign immunity and is subject to liability for the acts complained of.
In addition to g 1605(b),
Spain has also waived any sovereign immunity under
immunity with respect to any counterclaim
1607(b).
Section 1607 (b) waives sovereign
arising out of the same transaction or occurrence as the subject matter of a claim in which a
foreign State intervenes. 28 U.
C. g 1607(b). Here,
Spain intervened in the arrest of the
Defendant res by filing a Verified Claim. As detailed in the Amended Verified Complaint
Spain has taken numerous actions interfering with Odyssey s possessory rights and duties as
substitute custodian which all relate directly to the salvage of the Defendant Site in this
matter. Under 28 U.
C. g 1607 ,
Spain has therefore waived its sovereign immunity with
respect to a counterclaim for
damages as a result of Spain s intervention and tortious and
ilegal conduct arsing out of the arest of the Defendant res.
PLAINTIFF' S INTERROGATORY #2
Describe in detail the injuries or damages incurred by plaintiff and the specific acts or omissions by the defendant which have allegedly caused the injuries or damages.
Odyssey
s recovery of arifacts ITom
this and other sites has been the subject of
As a result solely of false media
intense international media attention especially in Spain.
reports , and false allegations by officials in Spain regarding the discovery Odyssey has called
the Black Swan, and despite Odyssey s continued assurance that no artifacts have
been
recovered in Spanish terrtorial waters, a bogus and prejudicial criminal investigation was
launched in Spain against Odyssey under a "secret
order. " In fact,
Odyssey became aware
through the Spanish press that Spanish authorities would intercept and inspect Odyssey
vessels , the
Ocean Alert and the
Odyssey Explorer if they attempted to depart Gibraltar
where they were docked. Spain rejected and rebuffed Odyssey s attempts to appear in its
own defense. Thus, as described in the Amended Verified Complaint, Odyssey prepared a
Sworn Statement explaining Odyssey s actions and the facts surrounding the arrest,
recovery, and the subsequent claims and baseless detention of Odyssey s ships by Spain.
the
Despite the fact that Odyssey provided the Sworn Statement and further infonnation
regarding its recovery to Spanish officials, and despite the assurance of a Spanish criminal
judge that Odyssey s vessels would not be boarded without the consent of the Master or
forcibly taken to a Spanish port, on July 12, 2007, while Odyssey was moving its vessel the
Ocean Alert
ITom Gibraltar, and while the vessel was in international waters, Spain boarded
the vessel under protest ITom the Master and ilegally seized the vessel forcing it into the
Spanish port of Algeciras. Having alerted the Spanish media to the boarding and seizure
Spanish authorities paraded the Ocean Alert
along the coastline for photographic and video
of
opportnities. Additionally, despite her protests, officials seized the personal computer
one of Odyssey s attorneys and infonned her that they intended to copy all infonnation ITom
the computer, which she made clear included attorney/client privileged infonnation regarding
Odyssey and other clients.
Once in Algeciras, Odyssey s crew and attorneys were forced by the Spanish officials
to sit in the scalding sun for approximately seven hours without food or water or use of the
restroom. Their passports were taken, as were all of their electronic equipment (of which the
hard drives have been removed and only the empty laptops returned). Spanish officials found
no evidence of any wrongdoing on Odyssey s part, and eventually released the
2007.
Alert
on June
On October 16, 2007, the
Odyssey Explorer
attempted to depart the port in Gibraltar
and was similarly intercepted, and under threat of force was diverted to the Spanish port of
Algeciras , Spain, against the wil of the Master. Spanish officials even violated their own
secret order" which Odyssey has since learned allowed boarding only upon consent of the
Master or, if withheld, upon consent of the flag state. The Master was also arrested and
detained , and although released, he remains under court order to appear in Algeciras each
month ,
apparently in perpetuity. Although Spanish
officials again found absolutely
Explorer
no
evidence of any wrongdoing by Odyssey, and although the
was released on October
, 2007, Odyssey s equipment including the ROV (Remotely Operated Vehicle) used in
Odyssey s search and recovery projects was sealed, and despite the lack of any wrtten order
Odyssey has been instructed not to remove the tape which binds the ROV under threat of
arrest , and,
in effect,
attaches it to the
Explorer thus denying Odyssey access to its own
equipment for use in exercising the very rights granted to it by this Court to continue
operations at the Defendant site.
In addition to the forgoing, Spain has intimidated and interfered with some of
Odyssey
s researchers in Spain,
making them fearful to provide servces to Odyssey
and
limiting their abilty to work on projects for Odyssey.
Odyssey s damages as a result of Spain s tortious conduct are extensive. At the date
of this filing, Odyssey estimates its damages caused by Spain
Odyssey
s civil liberties
s active interference with
, business operations and possessor rights to be over Five Milion
Dollars ($5
000 000. 00). Those damages have been carefully documented and may be
broken down generally as follows:
Interrption of Service of Vessels
and Lost Opportunity
560 000
$ 164 000
Marine Equipment (Equipment Odyssey was unable to retrieve due to Spain s ilegal blockade, and damages caused by Spanish officials to vessel equipment upon capture)
Freight
000
(Costs to move equipment)
Contractual Losses (Forfeited production work and expenses incurred ITom cancellation)
170 000
Travel and Legal Expenses
000
Loss of Use of Research Services (Researchers)
Arifact Detention
121 000
(Uncalculated)
(Arifacts detained in Gibraltar due to Spanish Order - likely suffering deterioration)
Odyssey wil also present "damage" evidence in this case regarding the costs
associated with the recovery and the proper archaeological conservation of the
Defendant
Site and arifacts thereITom. Such evidence wil be related to Odyssey s custodial obligations
and salvage claim.
PLAINTIFF' S INTERROGATORY #3
State the full name, address and telephone number of all persons or legal entities who have a financial interest in this action, and state the basis and extent of the interest.
Odyssey Marine Exploration Inc. is a publicly traded company on the NASDAQ
exchange with approximately 6 000 shareholders, each of whom wil have a financial interest
in this action as the stock value of the company may depend upon the outcome of the
litigation. Also affected wil be employees, suppliers, and contractors. Additionally, when
and if the identity of a particular ship associated with the Defendant Site is confinned , there
may be parties who wil have a cultural and/or legal interest in the wreck. As ODYSSEY has
noted in its pleadings, notice to such parties wil
be provided.
PLAINTIFF' S INTERROGATORY #4
Describe the nature of any dispositive motion(s) which the plaintiff anticipates may be
fied in this action.
ODYSSEY anticipates that it wil fie Motions for Summary Judgments based upon
legal issues involved in the action including but not limited to the issues raised by Claimant
Spain , of alleged sovereign immunity and assertion of a unilateral and general refusal of
salvage. ODYSSEY also anticipates that following completion of discovery, it wil
fie a
Motion for Summary Judgment granting ODYSSEY title to the Defendant Site and/or an
appropriate salvage award for its recovery efforts.
ODYSSE
By:
RATI
INC'
(prit Name)
(Title)
CO(1
Co STATE OF FLORIA
COUNTY OF JJ; I ur
CfrJJ
rn)1
OLlj'l
VERIICATION
to me or who
Co
,rrr.
swears and deposes tht he/she has read the foregoing
produced
ME, the undersigned authority, appeared
of Odyssey Mare Exploration, Inc.
r;1R.sfemrr
0i
y known
as idenicatio who Anwers to Stadard
Interrogatories and that the same are tre belief.
and correct
to the best ofhislher knowledge and
SWORN TO AN SUBSCRIED before me ths 12th day of November, 2007.
Nota Public
My commssion expires:
#."YP(;
PENNY CUBBEDGE GREENE
MY COMMISSION # DD 37631 EXPIRES: Docember 9 2008 HIOO-aNOTARY FL Nolar DI.""Ij\ AoUl CD.
1'OFt
i!
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on November 13 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 afSpain.
sf Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonspaVfowlerwhite. com Eric C. Thiel- FBN 016267 ethiel fow lerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
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