Great Lakes Exploration Group LLC v. Unidentified Wrecked and (For Salvage-Right Purposes), Abandoned Sailing Vessel, The

Filing 146

RESPONSE in opposition to MOTION for summary judgment 133 filed by Great Lakes Exploration Group LLC (Attachments: # 1 Declaration of Steven J. Libert, # 2 SEALED Declaration of Jeffrey D. Morris, # 3 SEALED Declaration of Kenneth Vrana, # 4 SEALED Declaration of Stephen R. Bilicki, # 5 Declaration of Richard Gross, # 6 Curriculum Vitae for Richard Gross, # 7 Rebuttal Declaration of Stephen R. Bilicki)(Robol, Richard) Modified text on 2/5/2009 (gjf).

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN Northern Division GREAT LAKES EXPLORATION GROUP LLC Plaintiff, v. The Unidentified, Wrecked and (For Salvage Right Purposes), Abandoned Sailing Vessel, etc. Defendant, et al. ) ) ) ) Civil Action No. 1:04 -CV-375 ) ) HON. ROBERT HOLMES BELL ) ) DECLARATION OF RICHARD GROSS Richard Gross, after first being duly sworn, deposes and states as follows: 1. I am an adult male. I have all my natural faculties. I am personally familiar with the facts stated in this Affidavit. All opinions are stated to a reasonable professional certainty. 2. In preparing this Affidavit, I have reviewed the Affidavit of Wayne Lusardi in support of the State's Motion for Summary Judgment. I have also reviewed the State's other materials filed by the parties. 3. As described below, it is clear that the Griffin was a sovereign vessel of the Republic of France at the time of the sinking. In today's terms, it would be considered a warship conducted a supply mission for the purpose of establishing what today would be considered forward operating bases (FOBs) for France's claims to the New World, focusing on the dual missions of defense and nation-building. 4. I have evaluated arguments that some have made that the Griffin may have been a private vessel rather than a state ship. It is clear that such arguments are based on flawed reasoning and failure to analyze the clear historical record. 1 5. Any reliance placed on Father Louis Hennepin's A Description of Louisiana, translated from the 1683 edition by John Gilmary Shea (1880) and Hennepin's A New Discovery of a Vast Country in America (1698) is clearly misplaced. The veracity of the 1698 edition of Hennepin's work has been called into question. In his book entitled Hennepin's Description of Louisiana , Jean Delanglez critically evaluated Hennepin's first book Description of Louisiana . Delanglez convincingly demonstrated that Hennepin had plagiarized the work of Claude Bernou for much of his account in his Description of Louisiana. When one performs a parallel comparison between Hennepin's account in his Description of Louisiana and Bernou's Relation of Discoveries , it is obvious that Hennepin plagiarized Bernou's account. Claude Bernou w rote his account from letters that he had received from La Salle. Unfortunately the letter which describes the sailing of the Griffon either did not survive, or it has not been located to the public's knowledge, so Bernou's account is the only reliable account of the sailing of the Griffon. Those who try to argue that the Griffon was a private vessel make the same m istake as every other American historian. For example, reliance on Francis Parkman and Louis Hennepin. Both are hopelessly flawed. The most re liable data concerning the Griffon comes from La Salle's letters found in Margry, from the Bernou account Relation of Discoveries, and from the Relation of Henri de Tonty written in 1684. Even though La Salle's letter concerning the sailing of the Griffon is not available, several of La Salle's letters offer an abundance of data concerning the true purpose of the Griffon. (See Margry, Pierre. Découvertes et établissements des français dans l'ouest et dans le sud de l'Amérique Septentrionale (1614-1754) Mémories et documents originaux recueillis et pub. par P. Margry. Unpublished Translation available at the Detroit Public Library. ) 2 6. As an example, Mr. Bruseth states: that the Griffon was "about 45 tons was." finished during the summer of 1679 and christen ed the Griffon..." Mr. Bruseth is wrong, the Griffon was a vessel of 40 tons. Mr. Bruseth may have gotten this figure from Hennepin or possibly Parkman who got it from Hennepin. Regardless of where the data came from, Hennepin and Parkman were both wrong. Bernou wrongly stated that the Griffon was 45 tons and Hennepin plagiarized his mistake. Parkman relied on Hennepin because he did not have Bernou's document when he first published. In fact, the historical record shows very clearly that Mr. Bruseth's historical analysis is faulty: La Salle wrote; "That there was no lack of capacity in the pilot who had been employed on all the largest ships of Canada and the Islands; nor was the vessel short of hands, for it is not customary for anyone to put more than six sailors in a boat of fo rty tons" (Margry Vol. II pg 75). La Salle wrote; "and all these losses befell me through no fault of mine, for the two barques were lost in my absence, after I had taken them safely into harbour and sent them back in charge of a go od pilot, the first with a crew of eleven and the second with six, although one was a barque of only twenty six tons and the other of forty tons and no one ever puts a stronger crew on vessels of this kind, even at sea" (Margry Vol. II pg 233). Tonti wrote; "On the 20 th of May, M. de La Forest, Major in command at Fort Frontenac, sent me orders from M. de La Salle to go with the bark, which was forty tons, to the end of he lakes..." (Anderson 1898, pg 17). 7. Mr. Bruseth also mistakenly states that "On the islan d at the mouth of Green Bay "La Salle planned to continue his journey to the Mississippi River by canoe. Since he 3 could not bring all his supplies with him on the canoe journey, he gave orders that the utensils, tools, and rigging intended for another ship (to be built on the Illinois River) be loaded into the Griffon, with further orders that these items be unloaded at Michilimakinac for La Salle's later use." 8. On its maiden voyage the mission of the Griffon was to move men and equipment from Lake Erie to the south end of Lake Michigan in order to make the construction of a Ship on the Illinois River possible. On the island La Salle most certainly did not "give orders that the utensils, tools, and rigging intended for another ship (to be built on the Illinois River) be loaded into the Griffon." These items were already in the hold of the ship because that is how they made their way to the island. In addition to these items, there were other items intended for the ship in Illinois including 7 cannon (probably bronze), and at least 1 anchor. It is doubtful that the rigging was aboard the Griffon at this time because when he arrived back at Niagara early in 1680, La Salle commented that the rigging and ship's fittings were at the storehouse (Margry II pg 61-62 ). 9. There is another glaring problem with this claim in Mr. Bruseth's document. When La Salle was on the island at the mouth of Green Bay he most certainly was not "planning to continue his journey to the Mississippi River by canoe" at that time. La Salle wa s on his way down to the Illinois River accompanied by ship's carpenters Moise Hillaret, Noel Le Blanc, and Francois Sauvin as well as the blacksmith Jean le Meilleur, and a host of skilled workers who were hired to construct a ship, on which La Salle inte nded to complete his mission of discovery, for the King, down the Mississippi River. La Salle did not give up on this idea until a year later when he arrived at the destroyed 4 Fort Crevecoeur ship yard after the Iroquois attacked (fall of 1680) and realized that his tools were gone and there was no way to finish the ship. 10. When it sank, the Griffon was carrying supplies for the Illinois ship which was the centerpiece for the planned mission of discovery. After the discovery was accomplished, La Salle intended to establish a fort and settlement near the mouth of the Mississippi River. This fort would secure France's newly claimed territory incursion from foreign countries. La Salle intended to use the Griffon to move men and supplies from Canada to Illinois so that he could send them down the Mississippi River on the Illinois ship to reinforce and supply the new fort near the mouth of the Mississippi River. As his Letters patent state, in order to indemnify him against the cost of his mission for the King, the King had granted La Salle the lands around the forts as a fief and seigniory as well as a monopoly in the trade in Bison hides. These Bison hides were too large and heavy to be transported through the Great Lakes via canoes. The farthest east Bison would have been harvested would have been in Illinois and due to hunting pressure by Indians in the region, bison were already becoming scarce in Illinois when La Salle arrived. Most of the furs would have come from west of the Mississippi River. At the time ther e were about 50,000,000 Bison in North America. La Salle stated that he could move as many as 100,000 Bison hides per year out of the middle of the continent (Margry II pg 250 ). Canoes could not handle the job, and the Great Lakes were too risky. 11. La Salle intended to transport hides down the Mississippi River to the post he intended to establish near the mouth of the Mississippi River . La Salle could not trade for beaver among the tribes around the Great Lakes; the Griffon would play a vital role transporting men and supplies to Illinois, but it was of little use as a cargo hauler from 5 Illinois to Canada. La Salle was after Bison and he did not have the manpower or facilities to move Bison hides up to and through the Great Lakes. 12. The primary mission of the G riffon was to carry the men, who were inexperienced in canoes and the large heavy supplies required to construct a Ship on the Illinois River and then supply the men and supplies needed to establish and support a fort near the mouth of the Mississippi River. La Salle never intended to use the Great Lakes as a route for his fur trade enterprise. He made that absolutely clear to his partners. La Salle clearly stated his reasons for not wanting to ship furs back to Niagara via the Great Lakes. In his mind, the storms on Great Lakes were too unpredictable and there were too many added costs in time, fort construction, and manpower. In addition La Salle wanted to avoid the Iroquois Indians on Lake Ontario. La Salle was so against using the Great Lakes he offered an alternative route to Canada using the Ohio River. 13. The ship that was to be constructed on the Illinois River was to be used to accomplish the voyage of Discovery as well as the establishment and support of a fort and settlement near the mouth of the Miss issippi River. La Salle stated that the ship would be a floating fort. It would enable him to accomplish his mission of discovery safely with as few as 30 men. The discovery and construction of a fort near the mouth of the Mississippi River was La Salle's official mission for the King. The Griffon was necessary to fulfill his commitment to the King. Any use of the Griffon for shipping furs back to Niagara via the Great Lakes was purely opportunistic and secondary. 14. When the Griffon sailed from Niagara, it c arried the men and the supplies that were needed to begin the construction of the ship in Illinois. Some of the supplies that were needed to finish the Illinois ship remained aboard the Griffon when it left 6 Washington Island on its return to Niagara. All t he equipment and supplies could not be taken off the Griffon because La Salle's lieutenant Henri de Tonti had left La Salle while they were at Missilimakinac and Tonti went to arrest some deserters at Sault St. Marie. La Salle had 4 canoes and 13 men while Tonti took 5 canoes and 13 men with him. Due to the lack of canoes and manpower, there were not enough canoes to carry all the supplies that were aboard the Griffon. Luc, the pilot of the Griffon, was directed to unload the rest of his cargo at Missilimakinac and proceed to Niagara. At Niagara the Griffon was supposed to pick up 25 more men and the rest of the supplies needed for the ship. The pilot of the Griffon was then directed to return to Missilimakinac, pick up the supplies that it had left there, and receive orders from La Salle on where to proceed. The Griffon was going to sail back to Niagara and pick up the supplies and men whether it carried a cargo or not. The cargo of furs was secondary to the role that the Griffon played in the mission of discovery. La Salle did not take everything he needed to finish the Illinois ship with him on the maiden voyage of the Griffon. A reasonable question to ask is why? In my opinion, the answer is as follows. La Salle did not have the manpower or vessels necessary to move all the cargo for the ship he was building in Illinois up to and past Niagara Falls. One of the reasons for this is that the vessel, the Frontenac, was destroyed on the south shore of Lake Ontario. This mishap had two negative affects. 15. First it prevented the men from finishing Fort Conti (at the mouth of the Niagara River) because they had to make several trips to move the goods salvaged from the wreckage of the Frontenac and due to the loss of the provisions on the ship other members of La Sall e's crew spent their time hunting rat her than constructing the fort. 7 16. Secondly the loss of the Frontenac slowed the shipment of supplies from Fort Frontenac to the shipyard above Niagara Falls. 17. La Salle wrote: "The Iroquois did not oppose the building of the fort which was begun at the outfall of Lake Erie; but the wreck of the first barque made it necessary to fill up the time of most of my men, during the whole winter, in conveying what I had saved from the wreck; and as I could not therefore get the fort into good condition before the second barque left, I contented myself with building two redoubts there forty feet square..." (Margry II pg 234). 18. In September of 1680 La Salle wrote: "In the autumn of '78 I lost a barque, the very day after I had landed fro m it through the fault of my pilot, who was a skilful man and had a crew of seven good men; he left it to itself in the offing and went and slept on land with all his men, so that at night, when the wind got up suddenly, he was unable to go on board, the anchor dragged, and the barque was cast upon a rock, where I lost five or six thousand livers and spent the time of ten or twelve men in conveying what was saved from it, and in going a distance of thirty leagues in search of provisions for the workmen of t he whole of the winter, the provisions that were in the barque being all lost." (Margry II pg 65 ). 19. The barque, Le Frontenac, was needed to move the heavy supplies, required for the Illinois ship, from Fort Frontenac up to the Niagara River. The loss of the Frontenac prevented the shipment of the goods to Niagara before the Griffon left for Lake Michigan. Bernou wrote: "He decided to send back his barque from this place, on account of the approach of winter, and to continue his journey in canoes; but as he had only four canoes, he was obliged to leave a quantity of goods in the barque and a large 8 number of utensils and tools of all kinds, and he ordered the pilot to land all these things at Missilimakinak where he could get them on his return. He also put all his furs on board the barque with a clerk and five good sailors. They had orders to proceed at once to the store which he had built at the end of Lake Erie, where they were to leave the furs and to load up with a quantity of goods and other things which a boat from Fort Frontenac, which was waiting for them at Niagara, was to bring them; they were then to return immediately to Missilimakinak, where they would find directions where they were to take the barque to pass the winter." (Margry I pg 488). 20. When he returned to Fort Conti at Niagara from Crevecoeur La Salle stated; "Moreover the rigging and ship's fittings with a quantity of provisions, arms, stores, tools, goods, and utensils, which were guarded by these seven or eight men in a hut above the Sault de Conty, whither they had taken them at great expense, an had guarded them there during the winter, ran a danger of being stolen, as some in fact were, and they could not be guarded while they were being conveyed except at grea t expense." (Margry II pg 61-62). 21. The ship from Fort Frontenac had transported many supplies, needed to complete the ship, to Niagara after the Griffon left for Lake Michigan. La Salle was operating short handed. He had sent 15 men to Illinois in advance of the Griffon and he had ab out 35 men total that were busy at the ship yard and at Fort Conti. La Salle was waiting for badly needed reinforcements to arrive from France. La Salle expected the Griffon to pick up the rest of the supplies for the ship including cables, rigging and sails as well as 25 men and return to Missilimakinac and pick up the supplies for the Illinois ship that had been left their on the Griffon's return from Green Bay. 9 22. Bernou wrote: "leaving letters at the place where he quitted the River of the Miamis, as he h ad done at the fort which he built at its mouth, for the information of the men who, to the number of 25, were to come in his barque to join him." (Margry I pg 502 ). 23. Bernou also wrote: "He decided to send back his barque from this place, on account of the approach of winter, and to continue his journey in canoes; but as he had only four canoes, he was obliged to leave a quantity of goods in the barque and a large number of utensils and tools of all kinds, and he ordered the pilot to land all these things at Missilimakinak where he could get them on his return." (Margry I pg 488 ). 24. When he returned to Fort Conti at Niagara from Crevecoeur La Salle stated; "Moreover the rigging and ship's fittings with a quantity of provisions, arms, stores, tools, goods, and utensils, which were guarded by these seven or eight men in a hut above the Sault de Conty, whither they had taken them at great expense, an had guarded them there during the winter, ran a danger of being stolen, as some in fact were, and they could not be guarded while they were being conveyed except at great expense..." (Margry II pg 61). 25. When the Griffon left Washington Island it was on official business. It was carrying supplies needed to finish the Illinois ship which was necessary for La Salle to complete his mission for the King. The pilot of the Griffon was instructed to drop off the cargo that La Salle could not carry at Missilimakinac and proceed to Niagara. At Niagara the Griffon would be loaded with the cables, sails, fittings, and other supplies and pick up 25 more men. Finally the pilot of the Griffon was instructed to return to Missilimakinac 10 where he was supposed to pick up the supplies that he had dropped of on his return journey and receive orders from La Salle on what to do next. 26. Why did La Salle instruct the pilot of the Griffon to unload the cargo he was carrying at Missilimakinac before returning to Niagara? When the 40 ton Griffon left the Niagara River, it was not carrying a full load. As it turned out, it was fortunate that the Grif fon was not fully loaded because if it was, it would not have been able to pass through the mouth of the St. Clair River where La Salle reported the depth to be 4 feet across the river in some places (Margry II pg 173). In comparison the fully loaded 45ton La Belle had a draft of about 7.5 feet (Bruseth; From a Watery Grave pg 72). La Salle sailed a lightly loaded ship up the St. Clair River, pa ssing the shallows at its mouth. 27. When he reached Missilimakinak, La Salle found several of his men who had deserted his enterprise and remained there instead of traveling on to Illinois where they were supposed to trade with the Indians for furs. He learned that some of his men were at Sault St. Marie, so he sent Tonti to arrest them. This left La Salle short handed, he continued on with only 13 men because Tonti took 5 canoes and 12 men. 28. When La Salle reached Washington Island, he met Michel Accault and some of the men who were sent to Illinois in advance of the Griffon. These men had done as they had agreed and collected many valuable furs which they brought with them. Because La Salle had sent Tonti after the deserters, he did not have enough canoes to carry all of the supplies for the Illinois ship which were aboard the Griffon. La Salle removed as much as he could carry from the hold of the Griffon and loaded it in the 4 canoes that he had. La Salle then had the furs loaded into the hold of the ship. 11 29. The Griffon sailed from Washington Island with orders to unload all of the remaining supplies at Missilimakinak. La Salle wrote: "We had not the iron work, the rigging or the sails, which we had been unable to bring in the canoes; some of them were in the barque, some at Sault de Conty, four hundred leagues from where we were" (Margry II pg 46). The Griffon was then sup posed to sail back to Niagara where the men were instructed to pick up the rigging and ships fittings that were needed to finish the ship in Illinois (Margry I pg 488); and Margry II pg 61 -62). The Griffon had to offload the remainder of its first cargo at Missilimakinak because La Salle did not have the men or canoes required to take it to Illinois. The Griffon could not carry its cargo back to Niagara because after it picked up the ship supplies at Niagara, it would have drafted too much water on its return trip to make it over the shallows at the mouth of the St. Clair River. It is true that due to financial pressure, La Salle sent the furs back aboard the Griffon , but this was secondary to the Griffon 's primary mission, which was to return to Niagara and pick up 25 men and the rest of the materials needed to complete the Illinois Ship and then pick up the supplies at Missilimakinac. The Illinois ship was crucial for La Salle's planned mission of discovery and the Griffon was needed to accomplish its const ruction. 30. The following passage is from La Salle's letter from Missilimakinac dated October 1682. This passage highlights one of La Salle's primary motivations for undertaking his enterprise:"Now it is easy to reply that, even if the Iroquois had tried to oppose my going, it would have been most dishonorable and cowardly for me to put a stop to my enterprise on that account, and to place those savages in the position of arbiters of the enterprises we may wish to embark upon, as if the King's orders could not 12 be carried out except with their approval; so that I should have been very wrong not to execute the orders committed to me, out of fear of the Iroquois." (Margry II pg 296 ). 31. La Salle stated that his enterprise was the King's official business. La Salle w as acting on orders from the King. 32. Mr. Bruseth states : "The intended purpose of the Griffon is quite clear. She was a key part of La Salle's commercial venture and would be used to carry furs, hides, and other cargo across the Great Lakes. Additionally evidence of La Salle's purpose in building the Griffon comes from a letter to one of his partners, dated September 29, 1680, in which he justifies his decision to use a barque for navigation on the Great Lakes. La Salle stated that the Griffon was needed "for bringing back furs and the skins of wild boars and elks if any are found... since it is impossible to make use for canoes for that purpose, by which, in three journeys, not more than sixty ox -hides at the most could be conveyed." (Bruseth pg 12). 33. Mr. Brus eth's omission of the rest of La Salle's statements in his letter of September 29, 1680 hides many details which explain the true purpose of the Griffon and paint a remarkably different picture than the one painted by Mr. Bruseth's citation. Many details can be obtained directly from La Salle's letters. I have included entire passages from 2 letters, including the letter of September 29, 1680, so that the proper context of La Salle's words can be understood. La Salle's letter from Fort St. Louis in 1683 (Margry pg 170 -188 ) 34. La Salle never intended to establish a fur trade enterprise using the Griffon to ship furs from the west via the Great Lakes. La Salle was strongly opposed to the idea of shipping furs through the Great lakes. The following is La Salle's description of the 13 problems associated with sailing ships on the Great Lakes: "I maintain that if a means of communication between Louisiana and New France is desired, it would be too difficult by way of the lakes because of the diverse winds which would be required for navigation on account of the difference in their respective positions, the violent storms always to be encountered near the land, their small extent of sea room, and their almost total lack of high ground and anchorage where one could shelter in case of need. The channel between Lake Erie and Lake Huron forms another great difficulty; you cannot make headway against its strong current except with a high wind astern, and in some places there is only a depth of four feet of water right across, so that vessels capable of withstanding the storms on these lakes can hardly pass. For, whether it be their high position among the mountains of Niagara, or the proximity of other heights, by which they are surrounded at almost all points, the storms are so violent, so sudden, and last so long, in Autumn and Spring, especially from the Northwest and Northeast, which are the worst, and from the Southeast in the Spring, that one will often be three or four days without being able to set the sails or bear off f rom the land, which is never more than from fifteen to sixteen leagues off as the lakes are little more than thirty leagues broad. And then, if this route should be persisted in, barques being used, as they cannot sail on the lakes before the middle of April and often even later, on account of the ice, and the Checagou is not navigable at that season nor for the rest of the year, even for canoes, except after a storm, the water having always drained off by the month of March..." (Margry II pg 173 -174). 35. Attached as Exhibit A is a complete section of La Salle's letter in which he explains the need for the Griffon and the role it played in his enterprise and his mission of 14 discovery. The portions I have made bold faced are the sections that are most pertinent. I have added comments below those sections in italics. 36. Upon examining La Salle's letters it becomes evident that La Salle never intended to establish a fur trade enterprise using ships on the Great Lakes. In fact he was adamantly opposed to such an idea. This letter also identifies that the reason La Salle built the Griffon was to ship the men and supplies he required to construct a ship in Illinois. The purpose of the ship in Illinois was to enable La Salle to complete his mission of discovery for the King and then secure the discovery by constructing a fort near the mouth of the Mississippi River. The Griffon was in the act of transporting supplies for the ship in Illinois when it sank (It actually had supplies for the Illinois ship in its hold). It was on a return mission to pick up the rigging and fittings needed to complete the Illinois ship. It is true that the Griffon carried furs on its return journey, but its primary mission was as La Salle had always planned, to carry materials and men needed for his journey of discovery. 37. Finally Mr. Bruseth states: "The commercial necessity of boats to sail the Great Lakes is repeated in a memorandum about La Salle's expenses from 1675 to 1684, in which it is stated that "for this purpose the barques are most necessary, both for facility transport [shipping furs an hides] and for going to meet those of the Indians who would take other routes." This passage shows that ships like the Griffon were needed not only to transport large quantities of furs and hides, but a lso to meet the Indians to acquire the furs and hides in the first place." (Bruseth pg 12) 38. The problem here is that Mr. Bruseth wrongly extrapolates the utility of the use of sailing ships on Lake Ontario to the upper lakes. During the period between 1676 and 15 1677 La Salle had 4 ships built at Fort Frontenac by Moise Hillaret. Hillaret built 2 vessels of 25 tons, one of 30 tons, and one of 40 tons. The barque Le Frontenac was destroyed on the south shore of Lake Ontario in 1678. Sailing on Lake Ontario was also risky. It is true that these ships were invaluable for moving cargo and men on Lake Ontario. They could sail from the south end of Lake Ontario to Fort Frontenac then down the St. Lawrence River for a distance of about 60 miles without significant cha nges in direction. While these ships and others after them served the French well on Lake Ontario, the Griffon was the only ship built on the upper lakes ever built by the French and it sank in 1679 on its return leg of its maiden voyage. The fact of the matter is that after the Griffon, the French never established any ships on the upper Great Lakes for the purpose of fur trade. Instead they relied on canoes. 39. Mr. Bruseth states that: "This information forms the basis of an expert opinion concerning ownership of the vessel." (Bruseth pg. 6). The problems with this document demonstrate that Mr. Bruseth does not understand the events surrounding La Salle's efforts to establish his enterprise in Louisiana and complete his mission of discovery for the King. He does not understand the role that the Griffon played in La Salle's enterprise. 40. These facts are borne out by a number of additional documents. In July of 1680 La Salle stated: "...that said Paulmier who, with the man named Masse, was guarding a hut in which a quantity of food and warlike stores had been put under shelter, for the prosecution of the exploration which we had commenced by His Majesty's command..." (Margry II pg 107) . 41. In a petition which was sent to the Governor of Quebec on October 5, 1682 it states: "Whereas the Sieur de La Salle, seignior and Governor of Fort Frontenac, has been 16 occupied in carrying out the King's orders concerning the discovery of Louisiana, wherein God has granted him all the success he could have anticipated;... (Margry II pg 309 -310; French pg 310 -311) 42. There is much additional evidence demonstrating that the Griffin was a sovereign vessel of the Crown of France, performing sovereign functions as a warship at the time of her sinking. For example, the Memoir of the Sieur de La Salle Reporting to Monsiegneur de Seignelay the Discoveries made by him under the Order of His Majesty also makes this clear. A translated copy is attached as Exhibit 2. The Memoir can be found in French, B.F. Historical Collections of Louisiana, Part 1. Wiley and Putnam. New York 1846. Online facsimile available at the web site France in America, beginning on page 37. Num=56&itemLink=r?intldl/ascfrbib:@field(NUMBER+@od1(rbfr+0007_0045))&link Text=0 43. Many of the men with La Salle were soldiers. As the Governor of Fort Frontenac, LaSalle was required to maintain a garrison (at his own expense) and he was in command of th ose troops. For example, attached as Exhibit 3 are the names of 15 men who were ident ified as being soldiers and a number of these were aboard the Griffon . All of these men were in Illinois at one time and several of these men accompanied La Salle down the Mississippi River on his mission of discovery. The Griffon was an armed vessel. It carried 2 brass cannons, 3 swiveling rail guns and it carried soldiers. This data makes clear that the Griffon had a key military function and would today be deemed a warship. 44. Throughout the entire French period the King did not want to overextend the colony too far from Montreal. He felt that it would be difficult to defend the territory and 17 that it would be a drain on the very small population of New France. Despite his concerns about overextending, the King recognized the strategic importance of controlling the Mississippi River Valley. He knew that if France controlled the Mississippi, the Spanish would be kept in check to the south and the British would be kept in check to the east. This was all part of why La Salle was allowed to claim the Mississippi River watershed for France. 45. La Salle's Letters Patent of 1678 allowed him to discover the western part of New France and construct as many forts as he felt necessary. La Salle's possession of these forts was under the same limitations as his title to Fort Frontenac. He had to obtain settlers, maintain a garriso n, and build the forts all at his cost. This is all spelled out in his Letters Patent of 1675 which granted him Fort Frontenac. This document is Appendix A of the Bruseth affidavit. 46. La Salle's Letters of Nobility are Appendix C of the Bruseth affidavit. Michel L'Hour's document specifically addresses how the Patent of Nobility affects the case. Regardless of whatever else may be argued one way or the other, it is clear that Sieur de La Salle died, his heirs did not claim any property in which he had an interest, and all title to such property automatically reverted to the King of France. FURTHER AFFIANT SAYETH NAUGHT. 18 State of Illinois County of Cook } ss: } I, Richard Gross, after being duly sworn this 4th day of February, 2009, declare under penalty of perjury that I have read the foregoing Affidavit and that it is true to the best of my knowledge and belief. _/s/___Richard Gross__________ Richard Gross 19 EXHIBIT A LA SALLE'S LETTER DATED SEP 29, 1680 (MARGRY II PG. 74 -87)1 "The barque was completed in the month of May following and set sail on the 7th of August 1679, and it was lost on the return from the Lake of the Illinois where I had taken it safely. We have been unable to get any news of it, or to see any remains of it e xcept a hatchway, the door of the cabin and the truck of the flagstaff. With regard to this barque I have three or four observations to make to you, as an answer to whatever may be said concerning it. "1 That it was not lost until it was coming back from the place where I had taken it in safety; and therefore its loss was not for want of foresight or knowledge of the route, but through the fatal violence of the storm, which raged furiously for two days after the vessel left and lasted for five days. "2nd That there was no lack of capacity in the pilot who had been employed on all the largest ships of Canada and the Islands; nor was the vessel short of hands, for it is not customary for anyone to put more than six sailors in a boat of forty tons. "3 Nor was the season too far advanced; for navigation is usually continued up to the end of November, and the vessel perished about the 20 th rd st of September."4th I think it impossible to do what the Abbe Bernou wrote to me about, to send and ascertain whether the lakes and the great river were navigable, otherwise than by a barque. The latter has to keep a course very different from that of the canoes, which 1 Margry, Pierre. Découvertes et établissements des français dans l'ouest et dans le sud de l'Amérique Septentrionale (1614-1754) Mémories et documents originaux recueillis et pub. par P. Margry. Unpublished English Translation available at Detroit Public Library. 20 are obliged always to go as near to the shore as they possibly can in order to land as soon as the wind rises, for they could not withstand the slightest squall in the midst of these lakes, forty to fifty leagues broad, while barques cannot keep too far out, so that they may not be driven on shore. Hence it is necessary to go in a barque in order to discover the difficulties of navigation; or else indeed we must censure those who have crossed unknown seas for not having first tried them with their boats in order not to risk their ships. "5 th Even if that has been possible, a period of three years would have been required to go all round the lakes, a distance of more than fifteen hundred leagues, where the slightest wind stops a canoe at one place for eight, ten, fifteen, and sometimes twenty days without advancing;"6 th The barque was absolutely necessary, and cannot be dispensed with for this enterprise;" [ La Salle will now detail why the Griffon was needed to accomplish the discovery of the mouth of the Mississippi River.] "7 th For conveying heavy loads, such as the rigging and fittings of the vessel which I had ordered to be built on the River of the Illinois, which is impossible by canoes. For although they were used for conveying these things to the top of the rapids, for the barque which I have had built above them, it does not follow that the same thing could be done on these lakes, for this vessel; for I am the only person who has succeeded in doing that along the rapids, contrary to the expectation of all who saw me attempt it. Moreover in that case I was free from two difficulties which are insurmountable on the lakes; one consists of the heavy squalls which make it necessary to land, often in difficult and steep places, and through the waves, which rise suddenly; under these circumstances, as three men at most take a canoe, two of whom are obliged at such times to hold the canoe while the other carries the packages to the land, it would be impossible to load and unload the canoes and 21 prevent them from being broken up when the third man came across loads which he could not move, such as the cables for anchors or the ironwork of the helm. The second difficulty arises from the length of these journeys in a canoe through the lakes, on account of their great extent, from which frequent storms result which delay the canoes; this is not the case in the rapids, where one is never troubled by winds, and the rapids extend only for a distance of forty leagues;" (The Griffon was needed to move the heavy supplies for the Illinois Ship from Niagara to the harbor La Salle had constructed at the mouth of the St. Joseph River at present day St. Joseph Michigan. It was not possible to move such large and heavy items via canoes through the Great Lakes. )"2 For bringing back furs and skins of wild boars and elks if any are found and you wish for return cargoes, as you tell me, through Canada; since it is impossible to make use of canoes for that purpose, by which, in three journeys, not more than sixty ox-hides at the most could be conveyed through the lakes;" [I submit that the secondary use of the Griffon was for return cargo "if any are found" after it had accomplished its primary mission. La Salle was not permitted to trade with the Indians on the shores of the Great Lakes. In order to ship furs from the western portions of the region, La Salle would have had to construct a network of forts and garrison them. The Des Plaines River and the upper Illinois River were not navigable for most of the year which as La Salle stated would require the use of horses to move furs and goods nearly 100 miles from navigable waters on the Illinois River to Lake Michigan at Chicago.] "3 rd For the protection of goods, which one cannot help leaving to the care of carriers, the waves and the rain often wetting everything, so that from time to time they nd 22 have to dry all the things in the canoes, in which nothing is shut up and nothing sheltered, without mentioning that nothing can be kept secret." (La Salle had to hide items such as guns and ammunition from the Iroquois. The Iroquois were extremely jealous of the potential advantage that the western tribes, particularly the Illinois, may obtain from direct trade with the French. The Iroquois were fighting to maintain their role as the middle man in the fur trade between western tribes and Canada.)"4th Because we have to take several men, such as new arrivals from France, who cannot handle a canoe, and the cost of their conveyance would be tremendous for that reason, as there is no boatman who would take them for less than two or three hundred livres per man;" [The Griffon was needed to move tradesmen and soldiers from Niagara to Illinois. It was dangerous business paddling canoes on the open lakes and wild rivers of North America. La Salle stated that in 1680 two of his men had died in a canoe accident or were murdered (Margry II pg 65) and a total of 1 0 died that year (Margry II pg 66)] "5 th For the protection of the men themselves, as well as the goods, for they would be much more exposed in canoes, not only to the perils of the waters, which are continual, but also to being killed by the Indians, as h appened to two of the Jesuits' men last autumn, and to suffering hunger, since it is impossible to carry provisions enough for a long journey in canoes, and most difficult to make up for the shortages by hunting for a large number of people. Finally, the w ar recently declared between the Illinois and the Iroquois exposed my men to attack at night in their camp by one or other of them, either by mistake or intentionally; for they were obliged to encamp in the woods, where these savages are particularly skill ed in surprise, whereas a barque is like a fort and provides a remedy for 23 all these difficulties; and without using one this enterprise cannot possibly attain success, at least by this route." [The enterprise cannot possibly attain success without the barq ue. It would be used to protect the men and supplies from the weather and hostile Indians. La Salle felt that he could not accomplish is mission of discovery for the King without the vessel.]"Besides all these points, which are essential, there is one in particular concerning the great river; one cannot abandon men there in canoes to the great number of Indians who live near, to whose mercy they would be exposed, especially in their camping grounds at night, considering the small number of men I have, if th ey were obliged to sleep on land; whereas, in a barque, there is protection, and with thirty men one can cross America. The precautions to be taken are to proceed during the daytime only, so as to be able to see the sand banks, and to anchor every evening and keep good watch at night; and, as all these tribes take prisoners form one another in the wars waged between them, to ransom as many as possible, to serve as an introduction in their country, the presents which have to be make for that purpose causing no expense because they are always returned more abundantly by the relatives of the prisoner delivered." (La Salle felt that the Illinois Ship was the only way he could accomplish his journey down the Mississippi River with so few men. The ship would be his mobile fort. In order to complete the Illinois Ship, he had to have the Griffon on the Great Lakes. ) "Moreover, even if that river, contrary to what we are told and to every opinion I conform about it, should not be navigable down to the sea the second barque which I have had begun in the Illinois country, would still be very necessary for bringing back commodities from the Illinois country, by a river which I have found to Fort Frontenac, this river being much more convenient than the route by which Jolliet traveled, the difficulties of which he 24 concealed, for reasons which I have not been able to guess." [La Salle has an alternative to shipping furs via the Great Lakes was the Ohio River. La Salle was absolutely opposed to shipping furs through the Grea t Lakes.] "This is the only method of transacting this trade through Canada as you seem to wish, the expense and the risks by way of the lakes being too great. Also by that route ox hides can only be obtained from there with difficulty; and I still persist in the opinion that it is necessary to get them by the Gulf of Mexico. But nevertheless I am ready to do so by the river, which I call La Baudrane, (the Iroquois call it Ohio, and the Outaouais Olighin -oipou) when you give me your opinion, after I have made you understand the difficulties of it. I have already told you that, after I have succeeded and have put things in train for trading, I intend to withdraw, although I believe it to be most profitable, or at the most to place an agent there, as I should request you to do to represent you, for I am disgusted to see that it will be necessary for me to be always defending myself, which is a role in which I do not succeed." [La Salle persisted in his opinion that it is necessary to ship the large furs by the Gulf of Mexic. It was just too expensive and risky to ship them via the Great Lakes. Because his partner seemed to wish that furs be transported via Canada, La Salle offered to try what he thought was a much better route, the Ohio River. ]"This river Baud rand rises behind Oneiout and, after a course of about four hundred and fifty leagues towards the west, about equally wide of wider throughout than the Seine is at Rouen, and much deeper, it discharges its waters into the River Colbert twenty or twenty fiv e leagues to the south by west of the mouth of the river of the Illinois where it falls into the same river. A barque can go very high up on this river towards Tsonnontouan, and at that place you are only twenty to twenty five leagues from the southern shore of Lake Ontario or Frontenac; from 25 there you can go to Fort Frontenac in a barque in fifteen hours with a favorable wind. So, by this route, there would be only one post to establish, at the mouth of the river of the Tsonnontouans on the shore of Lake Ontario, and another on the river I call Baudrane, where one could raise horses and use them for transport, which would be easy, the track being make." [The River Baudrand was the Ohio. La Salle stated that its headwaters are behind Oneiout. Oneiout was an Iroquois Village at the head of Oneida Lake just east of Syracuse New York. La Salle was referring to a headwater stream that would be a tributary of the Allegheny River. La Salle indicated that a barque could sail up the Ohio from the Mississippi River in the direction of Tsonnontouan. Tsonnontouan was a Seneca Indian village (Senecas were members of the Iroquois Nation) located near Rochester New York. La Salle stated that the ship would be able to sail up as far as a spot about 25 leagues from Tsonnontouan. The ship would have to be off loaded and the cargo transported by horse to the mouth of the river of the Tsonnontouans (at Rochester) where it would be loaded on a barque and shipped to Fort Frontenac. Although this plan utilized horses, it cut out the dangerous journey by ship from the south end of Lake Michigan to the eastern end of Lake Erie. By this time sailing vessels were established on Lake Ontario. This lower lake was much better suited to sailing vessels than the upper lakes.]"The only difficulty which presents itself is that of removing from the minds of Iroquois the suspicion which these journey will cause, which will perhaps be secretly formented by the Jesuits who live among them who have no liking for my enterprise, and may easily give th em to understand that we are aiding their enemies who dwell along that river beyond. The remedy would be to arrange peace with the Illinois which would not 26 perhaps be difficult, with a few presents. The whole country along that river and between it and the River of the Illinois, and ten or twelve days journey to the north and to the south, and on the west of the River Colbert, is full of wild oxen in untold numbers." [The Iroquois were still going to have to be dealt with. ] "The route by the lakes presents much greater difficulties, some of which Jolliet was unaware of, and some concealed. 1st many more posts are required. One post is needed at the foot of the fall by which the waters of Lake Erie are discharged into Lake Ontario, where navigation by barqu es is interrupted for thirteen leagues, and another where it begins again, the lower one on the shore of Lake Ontario for receiving things which come from Fort Frontenac until they are conveyed to the other post, where navigation begins again, at the entrance to Lake Erie, there to be reloaded into barques. There is another very great difficulty there, and that is that near the outlet of the lake, there is no harbour nor roadstead where a barque could be sheltered from the furious squalls that prevail there; and if the barques go down into the river they at once come to a rapid which a barque could not sail against, except by towing at the same time and having it hauled along by seventeen to twenty men all pulling together, and even then with the wind behind and all sails set." [The Niagara Falls Problem. A fort is needed at the mouth of the Niagara River, another is needed near the lower part of the falls, a third is needed above the falls. In addition there is no harbor at the head of the Niagara River. If the ships go down the Niagara River, the rapids make it very difficult to move the ship back out into Lake Erie. ]"2nd A post is also necessary at the end of Lake of the Illinois, where navigation ends just at the place called Checagoumoman, for storing things which have been brought in the barques, and conveying them to the canoes, two leagues from there, whence the said canoes alone can 27 navigate the stream down to the village of the Illinois, a distance of forty leagues, contrary to Jolliet's statement, th at navigation is interrupted for a quarter of a league only." [A fourth fort is needed at Chicago.]"3 Another post is required at the village of the Illinois, where barques can sail." [ A fifth fort is needed below Fort Crevecoeur.] "Besides the multiplicity of posts, which greatly increases the expense and the difficulty of keeping accurate accounts, the cost of so many vessels is great. A barque of forty tons, for which six sailors are required, would take three months to make its voyage. We have to recon damages, and the cost of the sailors, the fittings of the vessels and the provisions; whereas, by the way I have found, the same number of men and twenty horses, which could find fodder on the prairies through which they will pass, could convey the same quantity of goods in one month without any other expenses, and without risks." [The Ohio River cuts the transport time down to 1 month where the ship on the Lakes would take 3 months to move the same goods from Illinois and the ship on the lakes would be m ore expensive to operate.] "From all that I am telling you, you will see how difficult it is to carry on this trade through Canada, at least by way of the lakes, without counting the expenses from the Fort to Quebec; in particular, it is easy to see how many men would be needed, and you can clearly see that I have not got them, so that, even if I wished it, it is impossible for me to do it." [When considering the manpower needed and the cost, La Salle stated that it would be impossible for him to carry on f ur trade through the Great Lakes. The Griffon was not constructed to carry on a fur trade enterprise on the Great Lakes. It was meant to make the Mississippi River exploration possible.]"...I was not bound to take steps, on arriving here, for sending return cargoes by way of Canada, since we had agreed upon the contrary. I did so nevertheless, upon information which I rd 28 received, which compelled me to take that course, and you would have received them last year but for the loss of my barque; I will not fail to send you some as soon as possible, at least in respect of what I have received from you, out of the profit which I expect from the money of mine which I have advanced both in goods which I bought last year and this year to a considerable sum, there being over 18.000 livres worth of them, which I am venturing with the intention of giving you a share of the profits which will be large and will at least pay for what I have received." (Margry pg 74 ­ 87 )[La Salle clearly states that he did not intend to send return cargo from Illinois via Canada. He clearly states that he and his partner had previously agreed "upon the contrary." The furs were supposed to be shipped down the Mississippi River not back through the Great Lakes. The primary function of the ship on the Illinois River was to make it possible to discover a route from Illinois to the Golf of Mexico. That is, it would enable La Salle to fulfill his obligation to the King. It would hold enough food for the men. It would protect the men from the elements and from hostile Indians. The Griffon made the Illinois Ship possible. Its purpose was to enable the discovery. It was never intended to be used to ship furs from Illinois to Canada. Its purpose was to move men and supplies from Niagara to Illinois so that La Salle could accomplish the discovery.] 29 EXHIBIIT B MEMOIR OF THE SIEUR DE LA SALLE REPORTING TO MONSIEGNEUR DE SEIGNELAY THE DISCOVERIES MADE BY HIM UNDER THE ORDER 2 OF HIS MAJESTY "Monseigneur Colbert was of the opinion, with regard to the various p ropositions which were made in 1678, that it was important for the glory and service of the King to discover a port for his vessels in the Gulf of Mexico. "Sieur de la Salle offered to undertake the discovery, at his own expense, if it should please his Majesty to grant to him the Seignory of the government of the forts which he should erect on his route, together with certain privileges as an indemnification for the great outlay which the expedition would impose on him. Such grant was made to him by lett ers patent of 12 of May, 1678. "In order to execute this commission, he abandoned all his own pursuits which did not relate to it. He did not omit anything necessary for success, notwithstanding dangerous sickness, considerable losses, and other misfort unes which he suffered, which would have discouraged any other person not possessed of the same zeal with himself, and the same industry in the performance of the undertaking. He has made five voyages under extraordinary hardships, extending over more than 5,000 leagues most commonly 1. 2 th The Memoir can be found in French, B.F. Hi storical Collections of Louisiana, Part 1. Wiley and Putnam. New York 1846. Online facsimile available at the web site France in America , beginning on page 37. bin/ampage?collId=rbfr&fileName=0007//rbfr0007.db&recNum=56&itemLink=r?intldl/ ascfrbib:@field(NUMBER+@od1(rbfr+0007_0045))&linkText=0 30 on foot, through snow and water, almost without rest, during five years. He has traversed more than 600 leagues of unknown country, among many barbarous and cannibal nations, against whom he was obliged to fight almost daily, although he was accompanied by only 36 men, having no other consolation before him than a hope of bringing to an end an enterprise which he believed would be agreeable to his Majesty. "After having happily executed this design, he hopes Monseigneur will be pleased to continue him in the title and government of the fort which he has had erected in the country of his discovery, where he has placed several French settlers and has brought together many savage nations, amounting to more than 18,000 in number, wh o have built houses there and sown much ground to commence a powerful colony. "This is the only fruit of an expenditure of 150,000 ecous ­ the only means of satisfying his creditors who advanced to him the aid which he required after very considerable losses. "He believes that he has sufficiently established the truth of his discovery by the official instrument signed by all his companions, which was placed last year in the hands of Monseigneur Colbert, by the Count de Frontenac, as also by a report drawn up by the Reverend Father Zenoble, Missionary, who accompanied him during this voyage, and who is at this time Guardian of Bapaume; by the testimony of three persons who accompanied him, and whom he has brought with him to France, and who are now in Paris and by the testimony of many other persons who came this year from Canada, and who have seen one Vital, sent by M. de la Barre to collect information respecting him, on the spot, and who has confirmed the truth of the discovery.... [There are several more pages to this document.] 31 EXHIBIT C LIST OF SOLDIERS Jacques Richon Nicolas Duplessis Nicolas Laurent L'Esperance Antoine Brassard La Violette Jean du Lignon Pierre Prudhomme (armourer) ___Boisdardenne ___Faffart Nicolas Crevel Jean Michel Andre Henault Pierr e You Nicolas Doyon (armourer) 32 EXHIBIT D BIBLIOGRAPHIES Bibliography for Tonti's account Anderson, Melvin B., translator. Relation of Henri de Tonty Concerning the Explorations of La Salle from 1678 to 1683 . Chicago, The Caxton Club, 1898. Bibliography for Bernou's account. Bernou, Claude. Account of The Discoveries and Journies of The Sieur de La Salle 1679 ­ 1681. Margry vol. 1, pp. 472 -586. 33

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