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

Filing 9

MOTION for preliminary injunction and Memorandum of Law in Support by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)

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

Doc. 9

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ODYSSEY MARINE EXPLORATION, INe.

Plaintiff

: CIVIL ACTION
: Case No. : 8:08-cv-OI044- SDM- TBM

THE UNIDENTIFIED, WRECKED AND (FOR FINDERS-RIGHT PURPOSES) ABANDONED SAILING VESSEL , if any, its apparel, tackle appurtenances and cargo located within
center point coordinates: to be provided to the Court under seal at the Court' s request

in rem

Defendant(s).

PLAINTIFF' S MOTION FOR ORDER GRANTING PRELIMINARY INJUNCTIVE RELIEF AND MEMORANDUM OF LAW IN SUPPORT
Plaintiff, Odyssey Marine Exploration, Inc. ("Odyssey ), by its undersigned counsel

hereby moves for entry of an Order granting a preliminary injunction: (1)

appointing
its

Odyssey exclusive salvor-in-possession or finder-in-possession of the Defendant Site,

apparel ,

tackle, appurtenances ,

and cargo (hereinafter

Defendant Site

); (2) awarding

Odyssey priority salvage status,

and sole and exclusive possession of the

Defendant Site

within the area(s) described in the Complaint; and (3) temporarily enjoining and restraining

any and all interference by any third parties with Odyssey s exclusive rights to recover the
Defendant Site within the areas described in the Complaint.

Dockets.Justia.com

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The grounds supporting this motion are set forth in the accompanying memorandum

oflaw , which is incorporated herein by reference.
MEMORANDUM OF LAW IN SUPPORT
Plaintiff, Odyssey Marine Exploration, Inc. (" Odyssey ), by its undersigned counsel
respectfully submits this memorandum of law in support of its motion for entry of an Order
granting a preliminary injunction: (1) appointing

Odyssey exclusive salvor-in-possession or

finder- in- possession of the Defendant Site,
(here- inafter

its apparel , tackle, appurtenances , and cargo

Defendant Site ); (2) awarding Odyssey priority salvage status, and sole and

exclusive possession of the Defendant Site within the areas described in the Complaint; and

(3) temporarily enjoining and restraining any and all interference by any third parties with
Odyssey s exclusive rights to recover the Defendant Site within the areas described in the
Complaint.

BACKGROUND

In the spring of 2008 , Odyssey first located the Defendant Site using sophisticated

sonar and magnetometer equipment. The Defendant Site rests on the sea floor within the
English Channel at a depth of less than 200 meters between 25 and 40 miles from the Coast

of the United Kingdom beyond the terrtorial waters
nation.

or contiguous zone of any sovereign

Odyssey has used a surface-controlled remotely operated vehicle ("ROV") to survey
the wreck site and to take photographic images. The wreck site consists of cannons and other

unidentified objects. Odyssey believes that potentially valuable cargo may be located at or
near the site.

Odyssey is conducting research to determine the origin of the Defendant Site. Based

on a preliminary assessment of video and photographs taken of the wreck site by Odyssey
technicians , the Defendant Site is believed to be a shipwreck from the Colonial period.

Odyssey believes that the recovery operations must be undertaken in accordance with
strict archaeological protocols, and has recovered a brick which was intended to be used for

the symbolic arrest of this site. An archaeological excavation and conservation plan is being
developed to ensure that its recovery operations are consistent with these protocols. Odyssey

anticipates that it wil

begin recovery operations once

its excavation plan is completed and

the weather and currents in the area are conducive to safely engaging in recovery operations.

Upon information and belief, no other salvor is, or has been, working in the area

described in the Complaint. Since discovery of the site, Odyssey has maintained actual
continuous ,
and exclusive possession or

constructive occupancy of the wreck site

to the

extent this is possible. Due to the possibility of valuable artifacts at the Defendant Site
Odyssey anticipates that its recovery efforts may be subject to interference from rival salvors

or entities claiming an interest in the wreck or wreck site. Accordingly, Odyssey has moved

for entry of an Order granting a preliminary

injunction: (1) appointing

Odyssey exclusive

salvor- in- possession or finder-in-possession of the Defendant Site,

its apparel , tackle

appurtenances ,

and cargo;

(2) awarding Odyssey priority salvage status,

and sole and

exclusive possession of the Defendant Site within the areas described in the Complaint; and

(3) temporarily enjoining and restraining any and all interference by any third parties with
Odyssey s exclusive rights to recover the Defendant Site within the areas described in the
Complaint.

II.

ST ANDARD FOR GRANTING INJUNCTIVE RELIEF
In this Circuit, the four requirements for awarding preliminary injunctive relief are:
(1)

a substantial likelihood that the party requesting relief wil
on the merits;

ultimately succeed

(2)

the party requesting relief wil suffer irreparable injury if the injunction is not
issued;

(3)

that threatened injury to the moving party outweighs harm to the opposing
party; and

(4)
See Siegel v. Lepore,

the injunction, if issued, wil not be adverse to the public interest.
234 F. 3d 1163 (II th Cir. 2000);
1561-

Haitian Refugee Center, Inc. v. Nelson
aJJ'
498 U. S.

872 F. 2d 1555 ,

62

(11th Cir. 1989),

479 (1991);

United States v.

Alabama

791 F.2d 1450

1459 n.10 (II th Cir. 1986),

cert. denied 479 U. S. 1085 (1987).

As set forth below, Odyssey satisfies each of these four requirements. Therefore, an

award preliminary injunctive relief is appropriate in this matter.

III.

ARGUMENT

There Is A Substantial Likelihood That Odyssey Wil Ultimately Succeed On The Merits Of Its Claims
This is a salvage case involving admiralty and maritime claims under the law of

salvage and the law of finds.

1 Regardless of which legal theory is ultimately found to apply

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 III , Section 2 , Clause I , 28 U.S. C. 1333 , and Rule 9(h) of the Federal Rules of Civil Procedure. Claims arising out of salvage operations are unquestionably within the admiralty jurisdiction of the federal courts. See Treasure Salvors, Inc. v. Unidentifed, Wrecked and Defendant Sailng Vessel 640 F.2d 560, 566-67 (5 Cir. 1981) (Treasure Salvors III). 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 2d at 566-67 ("The subject matter jurisdiction thus granted is not limited to causes of action

);

to the case, there is a substantial likelihood that Odyssey wil

ultimately succeed on the

merits of either or both of its claims.
There Is A Substantial Likelihood That

Wil Ultimately Succeed On The Merits Of Its Claim Under The Law Of Finds
Odyssey

The maritime law of finds gives title to a
possession an object which has been lost at sea.

person who has reduced to

See Columbus-America Discovery Group v.
(4th Cir. 1992),

The Unidentifed, Wrecked and Defendant Sailing Vessel 974 F. 2d 450
denied
507 U. S.

cert.

1000 (1993). This doctrine has been consistently recognized in admiralty,
See

and courts have awarded title to shipwrecks to the finder when warranted by the facts.

Treasure Salvors,

Inc. v. The Unidentifed, Wrecked

and Defendant Sailng Vessel 569 F.2d

330 337 (5 h Cir. 1978)

(Treasure Salvors I); Martha s Vineyard Scuba Headquarters, Inc. v.
Wrecked and Defendant Vessel

The Unidentifed,

833 F. 2d 1059 , 1065 (1st Cir. 1987);

Indian River Recovery v. The CHINA 645 F. Supp. 141 (D. Del. 1986).

A finding of abandonment may be inferred from all of the relevant facts and
circumstances , and may be based on circumstantial evidence.
and Defendant Vessel
1991), aJJ'
Believed to be the

Zych v. Unidentifed, Wrecked
LADY ELGIN
755 F. Supp. 213 ,

214 (N. D. Ill.

960 F. 2d 665 (7

Cir. 1992). Under the facts of this case, there is a substantial

likelihood that Odyssey wil be able to prove that the Defendant Site has been abandoned by

arising from acts or occurrences on the territorial waters of the United States. "
Salvors , 569 F. 2d at 334 ("the presence of the prerequisite to the court' s jurisdiction. ). It rem res

Treasure within the district is not an absolute

is

common for U. S. admiralty courts to assert

terrtorial seas of foreign nations.

jurisdiction over shipwrecks located in international waters and even within the See Marex v. Unidentifed, Wrecked and Defendant Vessel 952 F. Supp. 825 , 828 (S.D. MS. Titanic, Inc. v. The Wrecked and Defendant Vessel 924 F. Supp. 714 (E.D. S. Lusitania, 884 F. Supp. 1042 (E. aJJ' 99 F. cert. denied 118 S. Ct. 1558 (1998).
Ga. 1997); Va. 1996); Bemis v. D. Va. 1995), 3d 1129 (4th Cir. 1996),

its original owner.

There

appears to be no evidence which would suggest that any other

entity has made an effort to recover the Defendant Site. Thus, the Court should find that the
vessel has been abandoned and award title to Odyssey under the maritime law of finds.
There

Substantial Likelihood That Odyssey Wil Ultimately Succeed On The Merits Of Its Claim Under The Law Of Salva2e
Is A

The common law of salvage applies to property that is lost at sea but has not

been abandoned by its original owner. The law of salvage grants a liberal reward to those
who voluntarily engage in efforts to save a vessel in peril at sea, and it promotes the orderly
recovery of such property.

See The BLACKWALL 77 U. S. I (1869). It is well recognized

that three elements must be established in order to present a salvage claim:

(1)

a marine peril from which the property could not have been rescued
without the assistance of the salvor;

(2)

service voluntarily rendered when not required as a pre-existing duty;
and

(3)
See The SABINE

success , in whole or in part, of recovery of the imperiled property.
101 U.S. 384 (1879);

Treasure Salvors,

Inc. v. The Unidentifed, Wrecked
" 546 F. Supp. 919 , 930 (S. D. Fla.
Cir. 1974)).

and Defendant Sailng Vessel, "Nuestra

Senora de Atocha,

1981) (citing Legnos v. M/W Olga Jacob 498 F. 2d 666 669 (5

Odyssey s activities with respect to the Defendant Site satisfy all three of
these elements, and therefore is a salvage operation within the meaning of the law.

The Defendant Site Is In Marine Peril
A marine peril "includes more than the threat of storm, fire or piracy to a
vessel in navigation.
Treasure Salvors 1
569

2d at 337. The concept of marine peril also
in peril of

includes a sunken vessel which is discovered after being long lost but is "stil

being lost through actions of the elements.

Id.

See also Platoro Ltd. ,

Inc. v. Unidentifed

Remains 614 F.2d 1051 (5
404 F.2d 137 ,

Cir. 1980);

Fort Myers Shell

Dredging Co. Barge NBC512

139 (5

Cir. 1968) (the "peril required in salvage service need not necessarily

be one of imminent or absolute danger, either presently or reasonably to be apprehended"
Thus , the Defendant Site satisfies the definition of marine peril because it is " stil
in peril of

being lost through actions of the elements. See Treasure Salvors 1

569

F.2d at 337.

Odyssey Is Voluntarily Renderin2 Service When Not Required As A Pre-Existin2 Duty
Odyssey is under no duty to

recover the Defendant Site.

Instead ,

it is

voluntarily rendering service to rescue the Defendant Site from being lost forever through the
action of the elements in the sea and

from the possibility that the vessel, if any, or its artifacts

wil be

further damaged by the elements, or hastily recovered by salvors without regard for
value.

the site s historic and archaeological

Accordingly, Odyssey has satisfied the second

element of a salvage claim.

Odyssey Is Substantially Likely To Succeed. In Whole Or In Part. In Recoverin2 The Imperiled Property
Odyssey has already demonstrated that it is capable of finding, surveying and
photographing, conducting an

archaeological excavation and recovering artifacts from a

shipwreck site at the depths that this site is located. Odyssey is ready, willing and able to
initiate its archaeological recovery operations

, and has done so for the limited purpose
Moreover ,

of

beginning the process of identification of this wreck site.
equipment manpower and experience
required to

Odyssey has the

successfully complete archaeological

recovery operations.

Odyssey has recovered some artifacts from the Defendant Site, and Odyssey is

actively and ably engaged in reducing the Defendant Site to its possession.

Odyssey has

taken constructive possession of the wreck site to the extent
permit. Accordingly,

its age,

depth and condition

Odyssey is substantially likely to succeed in recovering the imperiled

property, and it has satisfied the final element of a successful salvage claim.

Odyssey Wil Suffer Irreparable Injury If Injunctive Relief Is Not Issued
Odyssey has expended considerable resources in

locating, studying and

surveying the Defendant Site, in researching its origin, in preserving the historical value of

the wreck by photographing and documenting the site, and in developing an archaeological
excavation and conservation plan.

Odyssey has committed its financial resources, time

manpower , equipment and its vessels to these efforts , as well as to its preparation for the

actual recovery operations. To allow others to come in at this time and reap the benefits of
Odyssey s labor would constitute irreparable harm and injury to Odyssey for which there
would be no adequate remedy at law.

See Treasure Salvors

546 F. Supp. at 929;

Deep Sea

Research, Inc. v. The Brother Jonathan
102 F. 3d 379 (9
Cir. 1997),

883 F. Supp. 1343 ,

1362 (N.D. Cal. 1995),

aJJ'

aJJ' d in part,

vacated in part and remanded

118 S. Ct. 144

(1998).
As the Fifth Circuit explained in

Treasure Salvors III:

A salvor. . . has a valuable interest in his salvage operations
which the law protects by vesting in the salvor certain rights. Among the most important of these rights are the right to exclude others from participating in the salvage operations, so
long as the original salvor appears ready, willing and able to

complete the salvage project, and the right to possession of the salved property, a right exclusive even of the owner, until such

time as the salvage lien on the property is extinguished or

adequate security for this obligation is given.
640 F. 2d at 567.

Odyssey risks losing its legal rights and substantial investment to date if the

Court does not award preliminary injunctive relief. Consequently, the Court should enter a
preliminary injunction protecting Odyssey
s continued right to exclusive possession of the

Defendant Site, and protecting it from interference from rival salvors.

Odyssey

Potential Injury Outwei2hs The Injury Of

Any

Other Party

At this time, Odyssey is the only party claiming an interest in the Defendant
Site. The wreck is located beyond the territorial waters or contiguous zone of any sovereign

nation. It is not known whether any original owner of the vessel, its successors or assigns
wil claim an

interest in the wreck, but there is insufficient evidence available to Odyssey at

this time to determine the identity of the site. In the event that the identity of the site is
determined , Odyssey wil make every effort to identify and notify potential claimants to the
site. At this point,

Odyssey is not aware of any other party, including fishermen, salvors

divers or others that may have discovered or recovered parts of the site, that has sought a
salvage claim , or that has attempted to reduce the site to its possession.

Consequently, Odyssey

s potential injury

outweighs the injury of any other

party, since Odyssey wil suffer serious irreparable injury if an injunction is not issued, and it
is unlikely that any other party wil suffer injury if preliminary injunctive relief is awarded to
Odyssey.

An Injunction Wil Not Be

Adverse To The Public Interest
the Defendant Site in a

Odyssey is committed to recovering

manner that
wil

benefits the public interest.

The recovery operation and artifact preservation

conducted in accordance with strict archaeological protocols. Furthermore, Odyssey intends

to make certain

that

recovered artifacts are available for public display and educational

purposes as well as historic and scientific study. Consequently, the issuance of an injunction
wil not be adverse to the public

interest. To the contrary,

the issuance of a

preliminary

injunction permitting Odyssey

to conduct a competent, safe,
interest.

scientific and successful
See Treasure Salvors

recovery of the Defendant Site can only benefit the public
546 F. Supp. at 929.

IV.

CONCLUSION
For the foregoing reasons , Odyssey

respectfully requests that the Court grant its
Odyssey

motion for entry of an Order

granting a preliminary injunction: (1) appointing

exclusive salvor-in-possession or finder-in-possession of the Defendant Site,

its apparel

tackle , appurtenances , and cargo; (2) awarding Odyssey priority salvage status, and sole and

exclusive possession of the Defendant Site within the areas described in the Complaint; and

(3) temporarily enjoining and restraining any and all interference by any third parties with
Odyssey s exclusive rights to salvage the Defendant Site within the areas described in the
Complaint.

Respectfully submitted

Dated:

June 19, 2008

sf Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803
avonspCifow lerwhi te. com
Eric C.

Thiel- FBN 016267 ethiel(afow lerwhi te. com

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

Melinda J. MacConnel - FBN 871151 Odyssey Marine Exploration, Inc. 5215 West Laurel Street Tampa , FL 33607 (813) 876- 1776 , ext. 2240 Fax: [phone] E-mail: mmacconnelCishipwreck.net

Attorneys for Plaintiff

25C