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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By Wayne Sayles – Ancient Coin Collecting

That is the Question on everyone’s mind this morning as the Cultural Property Advisory Committee reconvened on Friday to consider the extension of a bilateral agreement with Italy that restricts the importation of certain classes of antiquities into the United States. Thursday morning, the committee heard comments in open public session from representatives of five main groups of concerned citizens—Archaeologists, Museum Administrators, Art and Antiquity Collectors, the Numismatic Trade and Ancient Coin Collectors.

From the numismatic community’s perspective, extension of the current Memorandum Of Understanding in some form seems a foregone conclusion, though some opponents argued very persuasively that the whole MOU is badly flawed and should be scrapped. The pressing issue for coin collectors is whether the addition of coins, already exempted in two previous five-year terms of the MOU, is to be or not to be.

In an era when politicians on both sides of the aisle are clamoring for transparent government and “sunshine” laws offer a promise of fair play and access, the U.S. State Department doggedly maintains its “distance” from the looking glass of public scrutiny.

None of the seven speakers from the numismatic community had the foggiest notion whether Italy had even requested that coins should be added—an ironic situation, since the State Department hearing was held in that part of Washington known as “Foggy Bottom.”

Unlike the mysterious Chinese request some years ago, one might presume, from the comments of Mr. Stefano De Caro, General Director of Antiquities within the Italian Ministry of Culture, that Italy did indeed ask for the addition of coins—even though the State Department ignored direct requests for an answer to that question.

Sebastian Heath, whose affiliation was vague and was actually the point of a followup question by one committee member, was listed by the State Department as an American Institute of Archaeology representative. He claimed, upon pressing of the point, that he actually represented himself. The fact that Heath often works for or at the American Numismatic Society, and personally participated in drafting the ANS statement on cultural property, was questioned in light of his recommendation that coins be added to the MOU.

The ANS statement says, in part, “…..within the world of artifacts, coins as a class do, in fact, stand apart.” Heath avoided the apparent conflict of positions by stating repeatedly that to his knowledge the ANS takes no position in the issue. It would have been interesting to see that question explored in some depth, but Mr. Heath mercifully escaped being hoist with his own petard for lack of time in the busy agenda. (more…)

The U.S. State Department has announced a date of May 6-7 for Cultural Property Advisory Committee hearings on the request for renewal of the Memorandum of Understanding with Italy. Hopefully your eyes are not already glazed over by this first sentence.

In practical terms, the U.S. government is about to decide whether antiquities and other forms of cultural property that Italy claims as its heritage ought to be restricted from entry into the U.S. unless accompanied by Italian export permits. There is already such an agreement in place, but ancient coins have been exempted twice before in these renewal requests that cover a 5-year window.

We have very good reason to believe that Italy and members of the archaeological community will this time seek to add coins to the list of restricted items.

There is a period open for public comment on the issue and the best way to comment is by fax. Don’t despair, this is VERY easily done. Simply go to the ACCG web site at http://accg.us and click on the Fax Wizard link (picture of U.S. Capitol Building) on the left side of the page. It says “Fax Your Legislator” but will indeed send your message to the State Department. You will be guided through a brief and easy to follow process that sends a free fax to the State Department registering your views.

Why oppose these import restrictions? Because Roman coins are at the very core of the cultural experience that we all treasure. They have circulated all over the known world in antiquity and since through trade and collector markets. It is impossible to distinguish a Roman coin found in Britain, for example, from exactly the same type, mint, etc found in Italy.

Requiring an export permit from Italy on a coin found and legally exported from Britain would not only be impractical, it would not have any legal foundation. Still, any court challenge by an individual is unlikely since the legal costs usually far exceed the value of seized objects.

We simply MUST oppose any expansion of the MOU with Italy to include coins. We must do so with an absolutely resounding voice.

Import restrictions are simply not a viable solution to protecting archaeological sites. They are an idealist panacea that cause far more harm to society than any possible good. Excluding the U.S. collector and trade from the legitimate world market for Roman coins, or unilaterally forcing draconian documentation requirements on Americans, would be grossly prejudicial and would certainly be against the interests of American citizens and their traditional freedoms. (more…)