Odyssey Marine Exploration, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel

Filing 23

MOTION for default judgment against The Unidentified, Wrecked and Abandoned Sailing Vessel by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)

Odyssey Marine Exploration, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel

Doc. 23

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
IN ADMIRALTY
ODYSSEY MARINE EXPLORATION, INC.
Plaintiff,
v.

CIVIL ACTION

Case No. 8:08-cv-01044-SDM-TGW

THE UNIDENTIFIED, SHIPWRECKED VESSEL, its apparel, tackle, appurtenances and cargo located within a 5 mile radius of the center point coordinates: to be provided to the Court under: seal at the Court's request, in rem
Defendant. /:

MOTION FOR DEFAULT JUDGMENT
COMES NOW, the Plaintiff, Odyssey Marine Exploration, Inc. ("Odyssey"), by and
through its undersigned attorneys, and respectfully moves this Honorable Court for entry of a

default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, and in
support thereof

would state:

1. Odyssey brought this action as an action under the laws of finds (Count I) and

salvage (Count II). (Doc. 1.)
2. Odyssey published notice of this action in the Tampa Tribune and the London

Times, on January 23,2009, which tentatively identified the vessel as Le Marquis Tournay, a

vessel of French origin awarded as a prize by the British Admiralty to certain British
privateers in 1748. (Docs.

16, 19.)

Dockets.Justia.com

3. No party appeared to assert an ownership right or interest. On the 30th day of
July, 2009, a default was entered by the Clerk of the Court in this action. (Doc.

21.)

4. Subsequent to the default, there has been no further activity from any other

party wishing to assert a claim of ownership as to the vessel or any of its contents.
5. Odyssey discovered the wreck site and has since maintained constructive

possession of the wreck site.
6. Odyssey's possessory rights are not protected by an injunction issued by this

court enforcing a status described by the term of art: "salvor-in-possession." (Doc. 14.)
7. The action brought by Odyssey in this case as Count I of its Complaint is to be

named the finder of a submerged wreck, now believed to be Le Marquis Tournay, and to be
granted right of ownership and title to all artifacts recovered therefrom.

8. Odyssey has shown that it has found the wreck, maintains constructive
possession of the wreck site and has the intent and ability to recover items from the wreck.

No other party has come foiih asserting an ownership interest or claim despite clear notice of
this action.

Wherefore, Odyssey respectfully requests this Honorable Court to enter a judgment in
favor of Odyssey Marine Exploration, Inc. naming it the finder of

the wreck site described in

the Complaint and awarding to Odyssey ownership rights and title to all artifacts Odyssey
has recovered or may recover therefrom, and bring into the district.

MEMORANDUM OF LAW

This is an action brought under law of finds and law of salvage. Under the law of
finds, a salvor who notifies the world of his find and no owner comes forward gains title to

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said find. Hener v. United States, 525 F. Supp. 350, 356 (S.D.N.Y. 1981). Odyssey filed its

claim, made the world aware of the claim and has had no response. A default was entered,

and pursuant to Rule 55(b)(2), Fed. Rule Civ. P. Odyssey is now entitled to a judgment
naming it finder of the sunken wreck and granting it ownership and title to all of the objects
recovered therefrom.

The law of salvage, on the other hand, presumes that the salvaged property

has an owner, that the owner has not abandoned its ownership interests or rights and can pay
a salvage award for the return of

the property. No such owner has come forward in this case

and it is fairly well settled in the admiralty courts that while law of salvage is preferred over

law of finds, abandonment of ownership rights and interests may be inferred through lack of
assertion of

those ownership rights and interests, paiiicularly in the case of ancient

shipwrecks.

The courts agree that the law of finds should be applied in those instances where no

party has come forward against which a salvage award can be levied. The following courts
found the defendant shipwreck to be abandoned and applied the law of finds where no party came forward to establish ownership rights: Treasure Salvors, Inc. v. The Unidentified
Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978); Treasure Salvors, Inc.
v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 556 F. Supp. 13 19 (S.D. Fla.

1983); Cobb Coin Co., Inc. v. The Unidentified Wrecked and Abandoned Sailing Vessel, 525

F. Supp. 186 (S.D. Fla. 1981); Klein v. The Unidentified Wrecked and Abandoned Sailing

Vessel, 758 F.2d 1511 (lith Cir. 1985); Wiggins v. 1100 Tons, More or Less, o/Italian
Marble, 186 F. Supp. 452, 456 (E.D. Va. 1960); Richardv. Pringle, 293 F. Supp. 981

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(E.D.N.Y. 1968); Indian River Recovery Co. v. THE CHINA, 645 F. Supp. 141 (D. DeL.

1986); Chance v. Certain Artifacts Found and Salvaged From THE NASHVILLE a/k1a THE

RATTLESNAKE, 606 F. Supp. 801 (S.D. Ga. 1984), aftd, 775 F.2d 302 (lith Cir. 1985);
Martha's Vineyard Scuba HQ, Inc. v. The Unidentified, Wrecked and Abandoned Steam

Vessel, 833 F.2d 1059, 1061 (lst Cir. 1987).
In Hener, supra, the court noted:

In the Treasure Salvors litigation, Treasure Salvors, Inc. ("TSI"), the group responsible for finding the treasure, was awarded title to and an exclusive right to recover the entire cargo, which was scattered over a wide area and portions of which had not yet been located. See Treasure Salvors, Inc., v. Unidentified Wrecked and Abandoned Vessel, 546 F. Supp. 919, No. 75-1416 (S.D. Fla. July 2, 1981). The facts of that case, however, readily justified a ruling for TSI under the law of finds. TSI not only had the intent to acquire the entire cargo but the proven capacity to do
so.
525 F. Supp. 350, 355.

The Hener court also noted that the Treasure Salvors' findings combined both salvage

and finds law, but observed that "reliance on salvage law was both conceptually unwarranted
and unnecessary in the TSI litigation to achieve an otherwise equitable and proper result."
Id.

Odyssey discovered the subject wreck site, has recovered objects from the site, has
demonstrated the intent and capability of recovering the remaining cargo and has maintained

constructive possession and a degree of control over the site as the nature of the site permits,
thus meeting all requirements of law of finds.

WHEREFORE, it is respectfully requested that the Court enter a judgment in favor of

Odyssey and name it finder of the wreck site set forth in the Complaint and to grant Odyssey

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ownership rights and title to all objects it has recovered and may hereafter recover from the
wreck site and bring into the district, pursuant to the law of finds.

Date:

¡t 1

Respectfully submitted,

Allen von Spiegelfeld - FBN 256803 [e-mail] Eric C. Thiel - FBN 016267 [e-mail]
BANKER LOPEZ GASSLER P.A.

501 E. Kennedy Blvd. Suite 1500 Tampa, Florida 33602 [phone] Facsimile: [phone]

and

Melinda 1. MacConnel - FBN 871151 Odyssey Marine Exploration, Inc. 5215 West Laurel Street, 2nd Floor Tampa, FL 33607 [phone], ext. 2240
Fax: [phone]

E-mail: [e-mail]
Attorneys for Plaintiff

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