Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Filing
68
ANSWER to court interrogatories re:
65 Order setting preliminary pretrial by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)
/:
Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Doc. 68
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN ADMIRALTY
ODYSSEY MARINE EXPLORATION, INC.
Plaintiff
: CIVIL
ACTION
: Case No: 8:07- CV- 00616-
SDM-MAP
THE UNIDENTIFIED, SHIPWRECKED VESSEL 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, INe.
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 all laws, acts havig the force and effect of law, codes, regulations and legal principles, standards and customs or usageswhich the plaintiff contends are applicable to the instant action.
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,
Article II, Section 2
Clause 1
28 U.
C. g 1333 ,
and Rule 9(h) of the Federal Rules of Civil Procedure. Claims
arising out of salvage operations are clearly within the admiralty jurisdiction of the federal
courts.
See Treasure Salvors,
Inc.
v.
Unidentifed, Wrecked and Abandoned Sailng
(Treasure Salvors III).
Vessel
640 F.2d 560,
566-67 (5 h Cir. 1981)
Furthermore, 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 from 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
seas of foreign
shipwrecks located in international waters and even within the terrtorial
nations. See Marex v.
Unidentifed, Wrecked and Abandoned Vessel
S. Titanic, Inc. v.
952 F. Supp. 825 ,
828
(S. D. Ga. 1997);
714 (B.D. Va. 1996);
The Wrecked and Abandoned Vessel
Va. 1995),
924 F. Supp.
Bemis
v.
MS. Lusitania 884 F. Supp. 1042 (E.
aff' , 99
3d 1129 (4
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
Spain has provided no basis for a claim against a vessel which Odyssey believes to be an
Italian-registered passenger ship which sank in 1915. Despite the lack of any evidence for a
claim , the Amended Verified Complaint would operate directly against the vessel and cargo
and would involve a determination of the potential ownership interest (or lack thereof) of all
parties in the property within the jurisdiction of this Court.
It is well settled that a Court sitting in admiralty
has jurisdiction to determine
ownership interests of salvaged property that has been reduced to the possession and control
of the salvor and is before the Court.
MS.
Inc. v.
Titanic, Inc.
v.
Haver 171 F. 3d
943
961 (4th
Cir. 1999);
Treasure Salvors,
Unidentifed Wrecked and Abandoned Sailng Vessel,
640 F.2d 560 566 (5th Cir. 1981). The so-called "constructive
in rem jurisdiction permits a
United States Court sitting in admiralty to adjudicate rights over the entire wreck or cargo.
S. 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
the terrtorial waters or contiguous zone of any nation is to protect such property from being
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 Maritime Law
179 (4th ed. 2004).
Furthermore,
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 Cour' 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 District; to engage
in conservation of the
arifacts; and to prevent
destrction of this Court' s actual and potential jurisdiction.
This court has personal jurisdiction specifically over Spain,
suggestion to the contrary, based upon the fact that Spain
despite Spain
has fied a general appearance
through its Verified Claim pursuant to Supplemental Rule C(6) (Dkt. 17). 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). Us. 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
Summons to the Kingdom of Spain (Dkt. 47) and, in fact, such service may be effectuated at
the time of the Preliminar 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.
See
The Elfrida
172 U. S. 186
194 (1898). The ultimate disposition of Count V depends
upon a determination 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 determined to have ownership
this
rights in the Defendant res,
Court would have subject matter jurisdiction under the
Foreign Sovereign Imunities
Act, 28 U.S. 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 determined 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 of the property, which arose out of the same subject matter of the 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 performance 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 from the jurisdiction of
a court in the United States concerning a suit in admiralty to enforce a martime 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
operations as
its ability to continue to perform its archaeological recovery and salvage
permitted 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
counterclaim
1607(b).
Section 1607(b) waives sovereign immunity with respect to any
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
matter. Under 28 U.
C. g 1607 ,
in this
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 arrest 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
artifacts from this and other sites has been the subject of
intense international media attention especially in Spain. As a result solely of false media
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 information
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
from Gibraltar, and while the vessel was in international waters, Spain boarded
the vessel under protest from 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
Ocean Alert
Spanish authorities paraded the
along the coastline for photographic and video
opportnities. Additionally, despite her protests, officials seized the personal computer of
one of Odyssey s attorneys and informed her that they intended to copy all information from
the computer, which she made clear included attorney/client privileged information 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 offcials found
no evidence of any wrongdoing on Odyssey s par, 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 no
Explorer
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 written 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
s researchers in Spain,
Odyssey
making them fearful to provide services to Odyssey
and
limiting their ability 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 OPvortunity
560 000
$ 164 000
Marine Equipment (Equipment Odyssey was unable to retreve due to Spain s ilegal blockade, and damages caused by Spanish officials to vessel equipment upon capture)
Freight
(Costs to move equipment)
000
Contractual Losses (Forfeited production work and expenses incurred from cancellation)
170 000
Travel and Legal Expenses
000
Loss of Use of Research Services (Researchers)
121 000
Artifact Detention (Artifacts detained in Gibraltar due to Spanish Order - likely suffering deterioration)
(Uncalculated)
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 artifacts therefrom. 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 confirmed, there
may be parties who will 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 file Motions for Summar 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
it wil fie a
salvage. ODYSSEY also anticipates that following completion of discovery,
Motion for Summary Judgment granting ODYSSEY title to the Defendant Site and/or an
appropriate salvage award for its recovery efforts.
'"
ODYSSE
By:
RATION ' INC.
(prit Name)
Co -
COf"Pt&km
CfYLl
rnXi
(Title)
STATE OF FLORIA
COUNTY OF 1+; 1/51uf
OVUJl
VERIICATION
Jrrr't of Odyssey Mare Exploration, Inc. to me or who
Lb
so1Wlly known eDmcation, who swears and deposes tht be/she has read the foregoing Anwers to Stadard Interrogatories and that the same are tre and correct to the best ofbis/her knowledge and belief.
0 is as
produced
ME, the undersigned authority, appeared
if.
SWORN TO AN SUBSCRIED before me ths 12th day of November, 2007.
Nota Public
My commssion expires:
ff""YPl'
PENNY CUBBEDGE GREENE
!! MY COMMISSION # DD 37831 1'on\\) EXPIRES: December 9, 200B
H\ooNOTARY F
Nolar Dlucounll\oe CD.
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 A ttorneys for Claimant, Kingdom of Spain.
s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(cfowlerwhi te. com Eric C. Thiel- FBN 016267
ethi el (cfow
lerwhite. com
FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?