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All Posts Tagged With: "Odyssey Marine"

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…)

Odyssey Marine Exploration 2009 Financial Results and Status on it’s Treasure Hunting Projects

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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