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)
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-Ol045-RAL-MAP
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
mrem
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
Odyssey exclusive salvor-in-possession or finder-in-possession of the Defendant Site,
its
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
,"
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,
its apparel , tackle, appurtenances , and cargo
(here- inafter
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 territorial waters or contiguous
nation.
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 piece of glass 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
in the area are
excavation plan is
completed and the weather and currents
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.
STANDARD 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 will ultimately succeed on the merits;
(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.
the injunction, if issued, will not be adverse to the public interest.
Lepore,
234 F . 3d
1163 (11 th Cir. 2000);
Haitian Refugee Center, Inc.
aJJ'
498 U. S.
v.
Nelson
872 F. 2d 1555 ,
1561- 62 (11
h Cir. 1989),
479
(1991);
United States
Alabama 791 F. 2d
1450 1459 n. 10 (11
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.
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 1 , 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
);
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 Odyssey Wil Ultimately Succeed On The Merits Of Its Claim Under The Law Of Finds
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
Cir. 1992),
The Unidentifed, Wrecked and Defendant Sailing Vessel 974 F.2d 450 (4
denied
507 U. S.
cert.
1000 (1993). This doctrine has been consistently recognized in admiralty,
See
569 F .
and courts have awarded title to shipwrecks to the finder when warranted by the facts.
Treasure Salvors,
Inc.
v.
The Unidentifed, Wrecked and Defendant Sailing Vessel
(Treasure Salvors 1);
330 337 (5
h Cir. 1978)
Martha
s Vineyard Scuba Headquarters, Inc.
The Unidentifed,
Indian River Recovery
Wrecked and Defendant Vessel
v.
833 F. 2d 1059 , 1065 (1 st Cir. 1987);
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
Believed to be the
Zych v.
Unidentifed, Wrecked
214 (N.D. Ill.
LADY ELGIN
(5
755 F. Supp. 213 ,
Defendant Sailing Vessel
640 F.2d 560, 566- 67
h Cir. 1981)
(Treasure Salvors Ill).
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 arising from acts or occurrences on the territorial waters of the United States. " Treasure Salvors I 569 F. 2d at 334 ("the presence of the res within the district is not an absolute prerequisite to the court' s jurisdiction. ). It is common for U. S. admiralty courts to assert rem jurisdiction over shipwrecks located in international waters and even within the See Marex territorial seas of foreign nations. v. Unidentifed, Wrecked and Defendant Vessel 952 F. Supp. 825 , 828 (S.D. Ga. 1997); MS. Titanic, Inc. v. The Wrecked and Defendant Vessel 924 F. Supp. 714 (E.D. Va. 1996); Bemis v. R. S. Lusitania, 884 F. Supp. 1042 (E. D. Va. 1995), aJJ' 99 F. 3d 1129 (4 Cir. 1996), cert. denied 118 S. Ct. 1558 (1998).
1991), aJJ'
960 F. 2d 665 (7
Cir. 1992). Under the facts of this case, there is a substantial
likelihood that Odyssey will be able to prove that the Defendant Site has be n abandoned by
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 Is A Substantial Likelihood That Odyssey Wil Ultimately Succeed On The Merits Of Its Claim Under The Law Of Salvaee
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.
1 (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
and Defendant Sailng Vessel, "Nuestra
Senora de Atocha,
" 546 F. Supp. 919, 930 (S. D. Fla.
1981) (citing Legnos
v.
M/W Olga Jacob 498 F. 2d 666 669 (5 h Cir. 1974)).
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 I 569 F . 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 h Cir. 1980);
404 F.2d 137 ,
Fort Myers Shell
Dredging Co. Barge NBC512
139 (5
h 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 Renderinl! Service When Not Required As A Pre-Existinl! Dutv
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
the site s historic and archaeological value. Accordingly, Odyssey has satisfied the second
element of a salvage claim.
Odyssey Is Substantially Likely To Succeed. In In Whole Or In
Part.
Recoverinl! 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
permit. Accordingly,
extent 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
locating, studying and
Odyssey has expended considerable resources in
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
h Cir. 1997),
883 F. Supp. 1343 , 1362 (N. D.
Cal. 1995),
aJJ'
102 F . 3d 379 (9
aj' 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 Outweiehs 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
Odyssey is committed to recovering
the Defendant Site in a
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
Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp fowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(cfowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
sf
Facsimile: (813) 229- 8313
Melinda J. MacConnel- FBN 871151 Odyssey Marine Exploration, Inc. 5215 West Laurel Street Tampa , FL 33607
(813) 876- 1776 ,
Fax:
E-mail:
ext. 2240 (813) 830- 6609 mmacconnel(cshipwreck.net
Attorneys for Plaintiff
33C
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