Odyssey Marine Exploration, Inc. (NasdaqCM: OMEX) has filed its Appellate Brief in the “Black Swan” case with the U.S. Court of Appeals for the Eleventh Circuit.

In the brief, Odyssey demonstrates that the district court erroneously dismissed the case by using flawed legal analysis and by failing to acknowledge or understand several major aspects of the case, including the issue of sovereign immunity.

Odyssey’s brief cites the recent favorable ruling by the Eleventh Circuit for the salvor in the Aqua Log (Aqua Log, Inc. vs. State of Georgia, 594 F.3d 1330, 11th Cir. 2010) case. This ruling was made shortly after the district court ruled in the “Black Swan” case and is a beneficial clarification of sovereign immunity in support of Odyssey’s position. In the Aqua Log case, the Court ruled that the sovereign must be in possession of the salvaged items in order to claim immunity from the courts in an admiralty case.

“The precedent set in the Aqua Log case is very relevant to the ‘Black Swan’ case and Spain’s sovereign immunity claim. The Eleventh Circuit found, as we had argued to the district court in our case, that a sovereign could not claim to be immune from the jurisdiction of the court when it did not have possession of the salvaged goods. It’s clear that Spain never owned the majority of the cargo here and did not have possession of them either,” said Melinda MacConnel, Odyssey Vice President and General Counsel. “The district court apparently dismissed the fact that there was no vessel present at the “Black Swan” site. The concretions of coins found by Odyssey were scattered over an area bigger than six football fields, with no coherent ship’s hull or structure. Even if that cargo did come from the Mercedes, it is well documented that the majority of the Mercedes’ cargo was owned by private merchants who paid for its transport and the Mercedes was carrying paying passengers. Under well-established U.S. and international law, vessels on such commercial voyages do not have sovereign immunity.”

The opening brief also points out several erroneous factual findings and legal conclusions made by the district court including the following:

• The district court did not conduct an evidentiary hearing on the disputed issues of fact, unquestioningly accepting testimony presented by Spain. This was a violation of due process for all of the claimants as well as Odyssey.
• The district court erred in failing to recognize that the Defendant in the case (an in rem proceeding) was NOT Spain or a vessel owned by Spain. The actual Defendant in the case was the group of coins and artifacts (the res in this case) discovered and recovered by Odyssey.

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Odyssey Marine Exploration (NasdaqCM: OMEX), pioneers in the field of deep-ocean shipwreck exploration, today reported full year 2009 financial results.

For the full year 2009, Odyssey reported revenues of $4.3 million, compared to $4.1 million in 2008 while operating expenses decreased $6.4 million from $29.1 million in 2008 to $22.7 million in 2009.

The Company reported a net loss of $18.6 million for the full year 2009, compared to a net loss of $24.8 million in 2008. The net loss per share for the full year 2009 was $0.33, compared to a net loss per share of $0.50 in 2008.

“We are pleased with the results of our 2009 operations, which despite some interesting challenges, saw some key strategic opportunities realized that I believe will have a profound effect on our business going forward. Several significant announcements made in late 2009 and early 2010 represent outstanding new opportunities for Odyssey, including the intention to syndicate multiple shipwreck projects with Robert Fraser & Partners that will mirror the structure of the “Enigma” project already executed. Taking into account expected revenue from multiple sources including these syndicated projects, we believe our current cash position is sufficient to fund operating cash flows through 2010, barring unforeseen circumstances,” said Odyssey CEO Greg Stemm.

“Also in 2009, we acquired a stake in a venture to pursue the exploration of deep-ocean gold and copper deposits. By providing our technical expertise and certain marine assets, we believe this will provide a lucrative future opportunity and is a natural extension to leverage our core competencies in deep-ocean exploration,” stated Stemm.

“In 2010, Odyssey will remain focused on continuing to strengthen our relations with several governments to conduct shipwreck searches with no upfront cost to taxpayers while returning cultural heritage and economic value to the governments. In September 2009, the UK Government awarded Odyssey a salvage award for the two cannon recovered from HMS Victory, while discussions continue to determine future plans for the site. The UK Government also awarded the exclusive salvage contract to Odyssey for the cargo of silver from the SS Gairsoppa,” continued Stemm. “We have a very ambitious operational schedule planned for 2010, with seven separate projects planned, utilizing at least three ships as well as some outstanding new deep ocean assets we have just acquired. We also have some interesting new technology on the drawing board that will extend our capabilities to a depth of 6,000 meters.”
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Odyssey Marine Exploration, Inc. has received notification from the U.S. District Judge that he has adopted the Magistrate’s Report and Recommendation in the “Black Swan” case in favor of Spain.

Although the Judge complimented Magistrate Pizzo’s Report and Recommendation, he also made it clear that he felt a separate opinion by him would “add only length and neither depth nor clarity (and certainly not finality) to this dispute.” The Judge also stayed the order vacating the arrest warrant and the return of the recovered coins to Spain until the U.S. Court of Appeals for the Eleventh Circuit rules in the case, which serves to keep the coins in Odyssey’s possession pending the outcome of the case.

“Judge Merryday’s ruling serves to move this case to the appellate court faster, where we feel confident that the legal issues are clearly in our favor. The ruling yesterday does not affect the current operations of Odyssey, and we have not been counting on any revenue from the “Black Swan” in any of our budgets since it was clear that this case would go to appeal no matter which way the judge ruled,” said Greg Stemm, Odyssey CEO.

“We are moving ahead with our other current projects – and it is important for people to understand that the vast majority of our shipwreck projects don’t have the same potential legal issues that have surfaced in the “Black Swan” case. Our focus for 2010 is on projects that are either under specific permits with governments or commercial vessels.”

“We take heart from cases like the shipwreck of the Atocha, which seemed lost at the district court level but was won during the appeals process, granting the salvor the majority of the coins and artifacts from that shipwreck. The Central America shipwreck case was also reversed on appeal and the salvor’s position in the case of the RMS Titanic was substantially vindicated by the Fourth Circuit court of appeals in 2006, so the three most famous shipwreck cases to date were reversed on appeal. I believe that this shows that it is not unusual for district courts to miss key legal principles in shipwreck cases because of their complex admiralty issues. ” (more…)