Odyssey Marine Exploration Inc. v. the Unidentified Shipwrecked Vessel

• Citation: 657 F.3d 1159,2011 A.M.C. 2409,23 Fla. L. Weekly Fed. C 425
• Decision Date: 21 September 2011
• Docket Number: 10–10374 and 10–10375.,10–10317,10–10319,10–10320,Nos. 10–10269,10–10318,s. 10–10269
• Parties: ODYSSEY MARINE EXPLORATION, INC., Plaintiff–Appellant,v.The UNIDENTIFIED SHIPWRECKED VESSEL, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Kingdom of Spain, Claimant–Appellee,Republic of Peru, Gonzalo De Aliaga, the Count of San Juan de Lurigancho, Agustin De Aliaga, the current Marques de Zelada del Fuente, Gonzalo Alvarez Del Villar, et al., Claimants.Odyssey Marine Exploration, Inc., Plaintiff,v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Gonzalo De Aliaga, the Count of San Juan de Lurigancho, Agustin De Aliaga, the current Marques de Zelada del Fuente, Gonzalo Alvarez Del Villar, Ignacio De Colmenares, the 11th Count of Polentinos, Alberto Emilio Thiessen, Enriqueta Pita Duthurburu, Flora Leonor Perales Calderon De Colmenares, Felipe Voyest, Adela Armida De Izcue Bazo, Carola Daireaux Kinsky, Eleonora Daireaux Kinsky, Matilde Daireaux Kinsky, Julio Vega Eurasquin, Inez Marquez Osorio, Javier De Goyeneche, the current Count of Guaqui and Marques de Villafuente, Juan Mariano De Goyeneche Y Silvela, the current Marques of Casa Davila, Claimants–Appellants,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Elsa Dorca Whitlock, f.k.a. Elsa Dorca Ruiz, Claimant–Appellant,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Republic of Peru, Claimant–Appellant,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Santiago De Alvear, Emilio De Alvear, Maria Eugenia Solveyra, Alejandro Julian Pera Barthé, Agustina Solveyra, Ignacio Solveyra, Claimants–Appellants,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Dr. Jaime Durand Palacios, Claimant–Appellant,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Jose Antonio Rodriguez–Menendez, a.k.a. Joseph Anthony Rodriguez, Claimant–Appellant,Kingdom of Spain, Claimant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

657 F.3d 1159

2011 A.M.C. 2409

23 Fla. L. Weekly Fed. C 425

ODYSSEY MARINE EXPLORATION, INC., Plaintiff–Appellant,

v.The UNIDENTIFIED SHIPWRECKED VESSEL, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Kingdom of Spain, Claimant–Appellee,Republic of Peru, Gonzalo De Aliaga, the Count of San Juan de Lurigancho, Agustin De Aliaga, the current Marques de Zelada del Fuente, Gonzalo Alvarez Del Villar, et al., Claimants.Odyssey Marine Exploration, Inc., Plaintiff,

v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Gonzalo De Aliaga, the Count of San Juan de Lurigancho, Agustin De Aliaga, the current Marques de Zelada del Fuente, Gonzalo Alvarez Del Villar, Ignacio De Colmenares, the 11th Count of Polentinos, Alberto Emilio Thiessen, Enriqueta Pita Duthurburu, Flora Leonor Perales Calderon De Colmenares, Felipe Voyest, Adela Armida De Izcue Bazo, Carola Daireaux Kinsky, Eleonora Daireaux Kinsky, Matilde Daireaux Kinsky, Julio Vega Eurasquin, Inez Marquez Osorio, Javier De Goyeneche, the current Count of Guaqui and Marques de Villafuente, Juan Mariano De Goyeneche Y Silvela, the current Marques of Casa Davila, Claimants–Appellants,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,

v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Elsa Dorca Whitlock, f.k.a. Elsa Dorca Ruiz, Claimant–Appellant,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,

v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Republic of Peru, Claimant–Appellant,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,

v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Santiago De Alvear, Emilio De Alvear, Maria Eugenia Solveyra, Alejandro Julian Pera Barthé, Agustina Solveyra, Ignacio Solveyra, Claimants–Appellants,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,

v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Dr. Jaime Durand Palacios, Claimant–Appellant,Kingdom of Spain, Claimant–Appellee.Odyssey Marine Exploration, Inc., Plaintiff,

v.The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo located within center point coordinates, In Rem., Defendant,Jose Antonio Rodriguez–Menendez, a.k.a. Joseph Anthony Rodriguez, Claimant–Appellant,Kingdom of Spain, Claimant–Appellee.

Nos. 10–10269

10–10317

10–10318

10–10319

10–10320

10–10374 and 10–10375.

United States Court of Appeals, Eleventh Circuit.

Sept. 21, 2011.

David Jeremy Bederman, Emory University School of Law, Atlanta, GA, Melinda J. MacConnel, Odyssey Marine Exploration, Carl R. Nelson, Fowler, White, Boggs, PA, Eric Christopher Thiel, Allen Von Spiegelfeld, Banker, Lopez, Gassler, PA, Tampa, FL, John D. Kimball, Blank Rome, LLP, New York City, for Plaintiff–Appellant Odyssey Marine Exploration, Inc.James A. Goold, Enrique Armijo, Jose E. Arvelo, Covington & Burling, LLP, Washington, DC, David Christopher Banker, Keith Dennis Skorewicz, Bush Ross, PA, Tampa, FL, for Claimant–Appellee Kingdom of Spain.David Peter Buehler, Law Office of David P. Buehler, Richmond, VA, R. Jeffrey Stull, Tampa, FL, Sharon Swingle, Civ. Div.–App. Staff, Barbara B. O'Malley, U.S. Dept. of Justice, Washington, DC, for U.S. Congress and U.S., Amici Curiae.David Paul Horan, Horan, Wallace & Higgins, LLP, Key West, FL, Jeffrey Carter Andersen, Bush Ross, PA, Tampa, FL, for Claimants–Appellants in No. 10–10317.William VanDercreek, Marlow V. White, Jr., Lewis & White, PLC, Tallahassee, FL, for Claimant–Appellant in No. 10–10318.Guy E. Burnette, Jr., Guy E. Burnette Jr., PA, Marlow V. White, Lewis & White, PLC, Tallahassee, FL, Mark Maney, Burford & Maney, PC, Houston, TX, John McLaughlin, Wagner, Vaughan & McLaughlin, PA, Timothy P. Shusta, Phelps Dunbar, LLP, Tampa, FL, Jose Antonio Rodriguez–Menendez, Davie, FL, for Service in No. 10–10318.Jeremy Gaston, Burford & Maney, LLP, Houston, TX, for Claimant–Appellant Republic of Peru in No. 10–10319.Matthew P. Farmer, Farmer & Fitzgerald, PA, Tampa, FL, for Claimants–Appellants in No. 10–10320.Jose Antonio Rodriguez–Menendez, Davie, FL, pro se, in No. 10–10375.Appeals from the United States District Court for the Middle District of Florida.Before HULL, BLACK and STAPLETON,^* Circuit Judges.

BLACK, Circuit Judge:

In 2007, Odyssey Marine Exploration, Inc. (Odyssey) discovered the remains of a 19th Century Spanish vessel in international waters west of the Straits of Gibraltar. Odyssey filed a verified admiralty complaint in rem against the shipwrecked vessel and its cargo in the Middle District of Florida and also sought a warrant of arrest. The Kingdom of Spain (Spain), the Republic of Peru (Peru), and twenty-five individuals filed claims against the res. Upon receiving additional information about the vessel's identity, Spain also filed a motion to dismiss. Spain argued, without waiving its sovereign immunity, that the res was a Spanish warship and the district court thus lacked subject matter jurisdiction over Odyssey's claims because the vessel was immune from judicial arrest under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602–1611. The district court granted Spain's motion to dismiss, concluding the res was the shipwreck of a sunken Spanish warship and was entitled to sovereign immunity. Having determined that the res is “immune from ... arrest” in United States courts, we affirm. 28 U.S.C. § 1609.

I. BACKGROUND

Odyssey is a deep-ocean exploration and shipwreck recovery business. In 2006, Odyssey began what it called the Amsterdam Project, researching ships that sank in a heavily-traveled area, which included an area off the coast of Gibraltar. Odyssey developed a list of target vessels to search for, one of which was the Nuestra Senora de las Mercedes ( Mercedes), a Spanish vessel that sank in 1804. According to Odyssey, it “recogniz[ed] that Spain may have had a cultural (if not legal) interest in vessels that may be located within the Amsterdam area, [and] invited Spain to participate in the project.” Odyssey's Resp. to Spain's Motion to Dismiss, Dkt. 138 at 3. Odyssey's CEO and counsel then met with a representative from Spain's Ministry of Culture. What occurred at the meeting is disputed, but both Odyssey and Spain agree Spain did not give Odyssey approval to salvage any sunken Spanish vessels.

In March 2007, while Odyssey was surveying the Amsterdam area, Odyssey discovered a shipwreck in international waters 100 miles west of the Straits of Gibraltar at a depth of 1,100 meters. The remains of the shipwrecked vessel were spread over the seabed in an area 368 meters long and 110 meters wide. Odyssey conducted a detailed survey of the shipwreck before disturbing any artifacts on the ocean floor and then began to recover objects from the site. Odyssey ultimately recovered approximately 594,000 coins and a number of other small artifacts.

On April 9, 2007, Odyssey filed a verified complaint against “The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo” in the Middle District of Florida. The complaint listed a possessory and ownership claim pursuant to the law of finds (Count One), as well as a salvage award claim pursuant to the law of salvage (Count Two).¹ It also noted Odyssey's intent to deposit with the court for symbolic arrest in rem a small bronze block recovered from the shipwreck.

On April 11, Odyssey filed a motion for an order directing the clerk to issue a warrant of arrest in rem against the shipwrecked vessel, its apparel, tackle, appurtenances, and cargo. Odyssey explained its intent to continue to recover artifacts from the site, and the motion provided that all artifacts and objects recovered would be turned over to the U.S. Marshal or to a substitute custodian appointed by the court for symbolic arrest in rem. Upon order of the magistrate judge, the clerk issued a Warrant of Arrest In Rem against the shipwrecked vessel and its apparel, tackle, appurtenances, and cargo. The warrant commanded the U.S. Marshal to take possession of the bronze block and any future artifacts recovered from the shipwrecked vessel. The court then issued an order appointing Odyssey as substitute custodian of the shipwrecked vessel and any recovered artifacts “until further order of this Court.”² Ord. Appointing Substitute Custodian at 2.

After Odyssey published a notice of arrest, Spain filed a verified claim to the vessel and its contents and cargo. On June 19, 2007, Spain filed a motion for a more definite statement and for disclosure of other information identifying the vessel and its contents. In the alternative, Spain sought an order dismissing the complaint, vacating the arrest, and terminating Odyssey's appointment as substitute custodian. Spain claimed Odyssey had not complied with the heightened pleading requirements for in rem complaints in admiralty, see Fed.R.Civ.P., Adm. Supp. R. C(2)(b), and had failed to provide information indicating the origin or nationality of the vessel and whether the vessel was a military ship or other sovereign property of a foreign nation. Spain stated that such information was relevant to the court's subject matter jurisdiction, as the property of a sovereign nation would be immune from arrest under the FSIA. In addition, Spain argued the details provided in the complaint were insufficient to allow Spain to determine whether to invoke sovereign immunity of the res from arrest.

Odyssey responded by filing an amended complaint on ...