Odyssey Marine v. Unidentified, Shipwrecked Vessel

• Decision Date: 22 December 2009
• Docket Number: Case No.: 8:07-cv-614-T-23MAP.
• Citation: 675 F.Supp.2d 1126
• Parties: ODYSSEY MARINE EXPLORATION, INC., Plaintiff, v. UNIDENTIFIED, SHIPWRECKED VESSEL, Defendant, Kingdom of Spain, et al., Claimants.
• Court: U.S. District Court — Middle District of Florida

675 F.Supp.2d 1126

ODYSSEY MARINE EXPLORATION, INC., Plaintiff, v. UNIDENTIFIED, SHIPWRECKED VESSEL, Defendant, Kingdom of Spain, et al., Claimants.

Case No.: 8:07-cv-614-T-23MAP.

United States District Court, M.D. Florida, Tampa Division.

December 22, 2009.

Allen K. Von Spiegelfeld, Eric C. Thiel, Banker Lopez Gassler, PA, Carl Richard Nelson, Fowler White Boggs, Gianluca Morello, Wiand Guerra King P.L., Melinda Joy MacConnel, Odyssey Marine Exploration, Inc., Tampa, FL, John D. Kimball, Blank Rome, LLP, New York, NY, K. Russell LaMotte, Beveridge & Diamond, PC, Washington, DC, for Plaintiff.

David Christopher Banker, Jeffrey Carter Andersen, Keith Dennis Skorewicz, Bush Ross, PA, Timothy Peter Shusta, Phelps Dunbar, LLP, John J. McLaughlin, Wagner, Vaughan & McLaughlin, PA, Tampa, FL, James Goold, Covington & Burling, LLP, Washington, DC, Mark Maney, Burford & Maney, PC, Houston, TX, David Paul Horan, Horan & Wallace, LLP, Key West, FL, Marlow V. White, Jr., Lewis & White, PLC, Guy Ellington Burnette, Jr., Guy E. Burnette, Jr., PA, Tallahassee, FL, for Claimants.

Jose Antonio Rodriguez-Menendez, Davie, FL, pro se.

ORDER

STEVEN D. MERRYDAY, District Judge.

A September 25, 2008, order (Doc. 134) refers Spain's motion to dismiss (Doc. 131) and motion to vacate the arrest warrant (Doc. 132) to the United States Magistrate Judge for a report and recommendation. Following the Magistrate Judge's June 3, 2009, report and recommendation (Doc. 209), Odyssey, the Republic of Peru, and the individual claimants object (Docs. 227, 228, 229, 230, 231, 234). Spain responds (Docs. 236, 237) in opposition to the objections, and the objectors reply (Docs. 260, 261) in support of the objections. With leave, the United States submits a Statement of Interest (Doc. 247), to which Odyssey, Peru, and the individual claimants respond (Doc. 259, 262).

In sum, the papers of Spain supporting the two referred motions, together with the array of papers opposing or otherwise evaluating the referred motions from several distinct vantages, constitute an encyclopedic treatment of the issues attendant to this controversy, which combines a compelling episode in naval history, the singular law that governs nations in their society on the sea, the intriguing prospect of recovering great wealth lost in connection with international conflict, the objective of respectful and reliable preservation of warships and their occupants and cargo lost at sea, and the troubling question of the plight of both persons and natural resources subject to colonial exploitation.

Over many days, I reviewed painstakingly both the Magistrate Judge's report and recommendation and each paper informing the several objections. Upon completion of that review, I considered composing an opinion analyzing the report and recommendation and resolving each objection. However, I have concluded in view of the meticulous and insightful report and recommendation that a separate opinion by the district judge will add only length and neither depth nor clarity (and certainly not finality) to this dispute. In any event, after a lengthy and somewhat trying review of the papers in this case, my only important opinion is that the Magistrate Judge is both eminently correct in his evaluation and highly accomplished in his presentation of the proposed result.

In particular, I note my emphatic agreement (1) with the Magistrate Judge's application of Rule 12(b)(1) as the proper standard for reviewing the facts pertinent to a determination of subject matter jurisdiction and (2) with the Magistrate Judge's conclusion that no genuine, plausible claim persists that the site at issue is anything other than the site of the wreck of the Spanish naval vessel Nuestra Señora de las Mercedes. Finally, I note my emphatic agreement with both the Magistrate Judge and Spain, which states at page twenty-one of the response (Doc. 236) that:

Odyssey's rehash of "commercial activity" arguments conspicuously fails to acknowledge that the exception expressly applies only to "property used for a commercial activity in the United States," if it "is or was used for the commercial activity upon which the claim is based." 28 U.S.C. §§ 1610(a), 1610(a)(2). Moreover, the FSIA defines "commercial activity in the United States" as "commercial activity carried on by such state and having substantial contact with the United States." 23 U.S.C. § 1603(e). It is undisputed that the Mercedes had nothing to do with the United States: "the res lacks any nexus to our nation's sovereign boundaries." (R & R at 29)

....

To defeat a showing of sovereign ownership and invocation of the FSIA, the claimant must show its claims are based on commercial activity by the vessel in the United States and/or a waiver of sovereign immunity. Odyssey has done neither.

I have reviewed with particular interest and admiration the statement on behalf of Peru by Professor John Norton Moore of the University of Virginia School of Law, who offers a provocative and scholarly elaboration of his observation that this case is not "about sovereign rights over wrecks ... or the dispute between salvors and sovereigns" but "as between Peru and Spain this case is about future custody of property physically, culturally and historically originating in Peru." Professor Moore advances the aspirational notion that cultural, historical, and archaeological "linkage" is "the crucial linkage for recognizing sovereign state interest." I have studied with care the appealing formulae detailed by Professor Moore and tested the applicability of those formulae as tools of decision in this case. Although I recognize the appeal of the legal principles Professor Moore advances and the responsiveness of those principles to considerations of justice in resolving a dispute between Peru and Spain, I conclude that the principles are not the governing tools of decision in this case in the United States district court (although the principles articulated by Professor Moore may govern in another forum on another day in resolving Peru's challenge to Spain's retention of the disputed items).

The ineffable truth of this case is that the Mercedes is a naval vessel of Spain and that the wreck of this naval vessel, the vessel's cargo, and any human remains are the natural and legal patrimony of Spain and are entitled in good conscience and in law to lay undisturbed in perpetuity absent the consent of Spain and despite any man's aspiration to the contrary. That the Mercedes is now irreparably disturbed and her cargo brought to the United States, without the consent of Spain and athwart venerable principles of law, neither bestows jurisdiction on the United States to litigate conflicting claims of ownership (to all or part of the cargo) nor empowers the United States to compel the sovereign nation of Spain to appear and defend in a court of the United States.

Conclusion

A de novo review of those portions of the report and recommendation to which Odyssey, Peru, and the individual claimants object reveals that the objections either are unfounded or otherwise require no different resolution of Spain's motions. Accordingly, the objections (Docs. 227, 228, 229, 230, 231, 234) are OVERRULED, and the Magistrate Judge's report and recommendation (Doc. 209), a copy of which is attached to, and incorporated into, this order, is ADOPTED. Spain's motion to dismiss (Doc. 131) and motion to vacate the arrest warrant (Doc. 132) are GRANTED. The amended complaint (Doc. 25) is DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION, and the warrant of arrest is VACATED. The claims (Docs. 13, 120, 136, 157, 164, 168, 169, 175, and 176) to the res are DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION. The Clerk is directed (1) to enter judgment of dismissal for lack of subject matter jurisdiction as to the amended complaint (Doc. 25) and as to each claim to the res (Docs. 13, 120, 136, 157, 164, 168, 169, 175, and 176); (2) to terminate any pending motion; and (3) to close the case. Finally, the substitute custodian, Odyssey, is ordered to return the res to Spain within ten days under the circumstances and in a manner subject to approval by the Magistrate Judge. However, the order to the substitute custodian to return the res is STAYED, the order vacating the arrest warrant is STAYED, and the status quo of the res shall persist until the earlier of (1) the day after the Eleventh Circuit Court of Appeals issues a mandate in this case or, (2) if no party appeals, the expiration of the time to notice an appeal.

REPORT AND RECOMMENDATION

MARK A. PIZZO, United States Magistrate Judge.

This in rem action involves competing claims over a shipwreck (the res) Odyssey discovered in international waters off the Straits of Gibraltar. Although the parties dispute the res's identity, Spain claims it is the Nuestra Señora de las Mercedes, a Spanish frigate that exploded in a pivotal 1804 engagement with the British and precipitated Spain's declaration of war against Britain. Accordingly, Spain moves to dismiss the matter on grounds this Court is without subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"). See 28 U.S.C. § 1602 et seq.; Fed.R.Civ.P. 12(b)(1). Having carefully considered the parties' detailed submissions, I conclude the res is the Mercedes, that none of the exceptions to the FSIA apply, and that as such this Court is without jurisdiction to adjudicate the claims against Spain's property. Therefore, I recommend the district judge grant Spain's motion to dismiss the complaint for the reasons stated below.¹

A. Background

Odyssey Marine Exploration Inc. ("Odyssey") bills itself as "the world's leader in deep-ocean shipwreck exploration and recovery." (Doc. 138 at 3.) As part of its business model, the firm extensively investigates its targets, and so it did with the Mercedes. By 2006, Odyssey listed the Mercedes with thirty other shipwrecks of interest (the "Amsterdam Project")....