Important News! CoinLink has merged..... Visit our NEW Site www.CoinWeek.com

BREAKING NEWS:....... Vist Our NEW Site at CoinWeek.com

All Posts Tagged With: "Black swan"

Odyssey Marine Exploration Comments on WikiLeaks Information

“Black Swan” and HMS Sussex projects named in Government Communications

Odyssey Marine Exploration, Inc. (NasdaqCM: OMEX) a pioneer in the field of deep ocean exploration, was named in several U.S. State Department cables obtained by WikiLeaks and furnished to the media worldwide. Some of the released cables suggest that the State Department offered special assistance in the “Black Swan” case to Spanish officials in exchange for assistance in acquiring a French painting confiscated by the Nazis during World War II and now controlled by Spain.

The cables indicate that the U.S. Government also provided confidential documentation on Odyssey to Spain.

Other State Department cables contradict Spain’s claims and support Odyssey’s previously stated version of events relating to the company’s activities in Spain, including the HMS Sussex project and the boarding of Odyssey’s vessels.

“While we are obviously concerned about these implications regarding the ‘Black Swan’ case, we are attempting to obtain additional information before taking any specific actions. I have personally sent a letter to the Secretary of State, Hillary Rodham Clinton, requesting additional information and a review of the position taken by the U.S. in the ‘Black Swan’ legal case,” stated Greg Stemm, Odyssey CEO. “The possibility that someone in the U.S. Government came up with this perfidious offer to sacrifice Odyssey, its thousands of shareholders, and the many jobs created by the company in exchange for the return of one painting to one individual is hard to believe. The WikiLeaks cables clearly show that we have worked cooperatively and transparently with both Spain and the State Department for many years, in spite of claims to the contrary. That fact makes the revelations all the more disappointing. The cables also make us wonder what other agreements may have taken place between U.S. Government officials and Spain regarding the amicus brief filed in support of Spain’s position in the ‘Black Swan’ case.”

“We’ve wondered why the United States changed its long standing position on sovereign immunity, which prior to this case was consistent with U.S. law, international law and U.S. naval regulations that in order for a foreign country’s ships and cargo to be immune from the jurisdiction of the U.S. courts they must be engaged in military, non-commercial activities,” stated Melinda MacConnel, Odyssey Vice President and General Counsel. “These released cables do call into question the motivation behind the amicus brief filed by the Executive Branch supporting Spain in the ‘Black Swan’ case.”

Additional cables released support Odyssey’s statements that, contrary to allegations of certain Spanish officials, the company always cooperated with the Spanish Government and that permits from the Spanish government were granted for work on the HMS Sussex project. The cables also demonstrate the obstructionist activities carried out by certain Spanish officials who had personal reasons for trying to prevent Odyssey from working on the Sussex. These obstructions took place even though Odyssey has an exclusive contract for the archaeological excavation of this UK sovereign immune warship (which was on a strictly military mission when it sank in 1694 off the coast of Gibraltar). Odyssey filed an affidavit in 2007 with a chronology of Odyssey’s interactions with the Spanish Government since 1998. It can be accessed at http://shipwreck.net/pdf/ExhibitE.pdf. The document contains entries that are corroborated by information in the State Department cables, which directly contradict claims by some Spanish officials and the Spanish media. (more…)

Wikileaks Reveals State Dept Deal with Spain In Black Swan Treasure Lawsuit

For years, Odyssey Marine has been in litigation with the Spanish government over a 17 tons of gold and silver coins that Odyssey discovered from “The Black Swan”.

The 19th-century shipwreck at the heart of the dispute with Odyssey Marine Exploration is the Nuestra Senora de las Mercedes — a Spanish warship sunk by the British navy southwest of Portugal in 1804 with more than 200 people on board.

The Legal Proceedings:

Odyssey announced in May 2007 it had discovered the wreck in the Atlantic and raised 500,000 silver coins and other artifacts worth an estimated US$500 million (€324 million). The coins and artifacts were brought into the United States with a valid export license and imported legally pursuant to U.S. law. Odyssey brought the artifacts under the jurisdiction of the U.S. District Court by filing an Admiralty arrest action. This procedure allows any legitimate claimant with an interest in the property to make a claim.

Spain went to the U.S. federal court claiming ownership of the treasure and the case is currently set for Oral Arguments tentatively scheduled to take place during the week of February 28, 2011 at the United States Court of Appeals for the Eleventh Circuit.

Additional appeals have been filed by groups who have presented documentation indicating that if Spain is correct, and the recovered cargo originated from the Mercedes, they are descendants of the owners of Mercedes’ cargo and have legitimate property rights. Those claimants have recognized Odyssey’s archaeological recovery efforts and have acknowledged Odyssey’s right to a salvage award. (more…)

Odyssey Marine Exploration Challenges Claims by Spain in Its “Black Swan” Appellate Reply

Odyssey Marine Exploration, Inc. today filed its Reply to Spain’s Response in the “Black Swan” case, currently pending in the United States Court of Appeals for the Eleventh Circuit in Atlanta, Georgia. This is expected to be the last round of written pleadings at the appellate court level. Odyssey’s filing is available for review at http://www.shipwreck.net/blackswanlegal.php

Odyssey is appealing the district court’s dismissal of the case based on the court’s finding of lack of federal jurisdiction. Odyssey’s Reply presents the following documented facts that debunk the misrepresentations made by Spain that contributed to the clear error in the district court’s earlier ruling and that have been repeated in Spain’s appellate Response:

  • there was no vessel and there were no human remains located at the “Black Swan” site
  • Odyssey acted legally and appropriately in the recovery of the “Black Swan” artifacts
  • evidence, including accounts from Spain’s “experts” and Spain’s own contemporaneous diplomatic communications, prove that the Mercedes (the vessel Spain associates with the site) was on a commercial mission on her final voyage — a fact that legally voids Spain’s claim of immunity under settled international law and conventions
  • a distinction between cargo and vessel is allowed and even required by settled admiralty law; and — according to the manifest of the Mercedes, the vast majority of cargo on board did not even belong to Spain — even Spain concedes the cargo was “articles of Spanish citizens.”

“The emotional and inflammatory language used in Spain’s appellate response serves to distract from the truth and the relevant legal issues. The story Spain tells mirrors the one it told at the district level, where the court made clearly erroneous factual findings,” said Melinda MacConnel, Odyssey Vice President and General Counsel.

“Spain’s filing has painted a negative portrait of Odyssey, but the company has always acted in full compliance with the letter and spirit of the law. We brought the artifacts to the U.S. courts for proper adjudication of claims, but we didn’t even receive a hearing on the jurisdictional facts. If the court did not have jurisdiction, it would have no legal authority to order transfer of the property to Spain, who did not have possession of the coins. (more…)

Amicus Briefs Support Odyssey Marine’s Legal Position in Black Swan Treasure Coins Appeal

[ CoinLink News ]Several additional appellate briefs and amicus briefs have been filed with the Eleventh Circuit Court of Appeals in Odyssey Marine Exploration’s “Black Swan” case. The filings support Odyssey’s argument that the trial court erred in dismissing the case because the recovered coins did not belong to Spain and therefore do not qualify for sovereign immunity, Spain did not have possession of the coins, and sovereign immunity only applies to vessels exclusively on a non-commercial mission.

Among the briefs were two separate filings by groups of descendants whose ancestors owned the cargo shipped aboard the Mercedes. The trial court actually missed the basis of their claims calling them “descendants of those aboard the Mercedes.” The trial court, the descendants argue, also missed the fact that no vessel was found at the site and that in any event, property rights to cargo are distinct from the rights to the vessel.

An amicus brief (a filing by a “friend of the court” not a party to the case) was also filed by a congressional delegation led by Congressman Gus Bilirakis. That filing clarifies relevant legislation in the case and asserts that if the Mercedes was on a commercial mission at the time of its demise, as all evidence proves, that vessel should indeed be subject to the jurisdiction of the U.S. courts.

“We are very pleased that Congressman Bilirakis and the other members of Congress who submitted this brief understand the dangerous implications of the district court’s decision here,” said Melinda MacConnel, Odyssey’s Vice President and General Counsel. “If any foreign vessel is allowed to escape the jurisdiction of our courts regardless of its mission or the cargo it carries, there could be grave environmental consequences and national security ramifications. It is very clear that only warships on strictly non-commercial missions are meant to enjoy sovereign immunity, and we feel confident that the Eleventh Circuit will confirm that.”

CNN Video of Black Swan ClaimsAdditional signatories to the brief include: Congressman Bill Young, ranking Republican Member on the House Appropriations Subcommittee on Defense, Congressman Connie Mack, Congressman Vern Buchannan, Congressman Thomas J. Rooney, and Congressman Thaddeus McCotter.

The Historical Shipwreck Salvage Political Action Committee, joined by the Institute of Marine Archaeological Conservation and Fathom Exploration, Inc., also submitted an amicus brief arguing that if the trial court’s decision stands it could mean the end of archaeologically sound shipwreck recovery and conservation because salvors would have no incentive to properly document their finds or give notice to parties with potential interest. They echo the praise of Odyssey submitted by some of the descendant claimants as, “dedicated professionals who set the highest standards for maritime salvage and archaeology of deep water wrecks…Without the continuing courageous efforts of Odyssey there would be no benefit to the claimants and perhaps of greater importance no benefit to the public.”

Peru has also filed an appeal of the trial court’s ruling, as has a Florida doctor claiming to have historical contractual rights to any property in Florida owned by Spain. All appellants argue that because the court did not conduct a hearing on any of the issues, there was a violation of due process. (more…)

Odyssey Marine Exploration Files Appellate Brief in “Black Swan” Case

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.
  • (more…)

“Black Swan” Case to Move to Appeals Court

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.

black_swan_silver
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…)