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)

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/: 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

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