"Black Swan" Legal Filings
Shortly after Odyssey announced the discovery of the "Black Swan” in May 2007, the Kingdom of Spain filed a claim in the case. A number of individual private descendants (whose ancestors paid to have goods transported aboard the Mercedes) as well as the country of Peru filed claims in the case. The US Federal Court, without a trial, dismissed the case upon determining it did not have jurisdiction and in 2012 ordered the coins and artifacts be turned over to the claimant, Spain. The Eleventh Circuit Court of Appeals upheld the dismissal, but also noted that it did not conclude the property belonged to Spain.
Below are links to download significant Odyssey filings in the case.
Article on the "Black Swan" Case
The American Society of International Law’s (ASIL) Cultural Heritage & Arts Review published an article titled “High Seas Shipwreck Pits Treasure Hunters Against a Sovereign Nation: The Black Swan Case” written by Kimberly Alderman that provides a good summary of the status of the case. The article is available for download here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1619330. Neither the author of the article or the Review have any affiliation with any party in this case.
February 27, 2012
(Appeal to the Supreme Court)
January 20, 2011
"Black Swan" Appellate Case Filings
(U.S. Court of Appeals for the Eleventh Circuit, Case Number 10-10269J)
January 5, 2011
August 19, 2010
August 16, 2010
August 9, 2010
May 25, 2010
The brief argues that if the district 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.
May 18, 2010
A filing made by a group of Congressional leaders to clarify relevant legislation in the case and assert 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.
May 11, 2010
Filing arguing that the district court did not address Spain and Peru's competing claims of ownership.
May 11, 2010
Filing made by another group of descendant whose ancestors owned the cargo shipped aboard the Mercedes. The descendants argue that the district court missed the basis of their claim calling them "descendants of those aboard the Merecedes" and the court 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.
May 10, 2010
A filing made by a Florida doctor claiming to have historical contractual rights to any property in Florida owned by Spain.
May 10, 2010
Filing made by a group of descendant whose ancestors owned the cargo shipped aboard the Mercedes. The descendants argue that the district court missed the basis of their claim calling them "descendants of those aboard the Merecedes" and the court 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.
May 10, 2010
In the brief, Odyssey demonstrates that the district court, without conducting a hearing on the issues, erroneously dismissed the case. The district court made incorrect findings of fact and applied flawed legal analysis as to several major aspects of the case, including the issue of sovereign immunity.
"Black Swan" District Court Case
(U.S. Federal Court for the Middle District of Florida, Case Number 8:07-cv-614T-23MAP)
October 15, 2009
Odyssey filed its Reply to Spain’s Response to Odyssey’s Objection to the Magistrate’s Report and Recommendation in the Black Swan case. In this filing, Odyssey points out that the U.S. Court does have jurisdiction in this case; that the Magistrate has applied an incorrect standard of review by making factual determinations when the jurisdictional facts of the case are intertwined with the merits of the case; and that the Magistrate accepted and relied upon “facts” as presented by Spain which are not true.
October 14, 2009
Odyssey filed its response to the United States Department of Justice Statement of Interest and Amicus Curiae Brief filed in the "Black Swan" case on September 29, 2009. Odyssey’s response asserts that that neither U.S. nor international law supports the policy positions now advanced by the U.S. Brief. Odyssey cites to law which indicates that (1) vessels engaged in primarily commercial purposes have never been intended to enjoy sovereign immunity and (2) regardless of the vessel’s status, private cargo recovered from the sea bottom is not sovereign immune (especially when no vessel exists or was disturbed in the recovery).
July 21, 2009
All Filings (~28 MB):
Odyssey filed its formal written Objection to the Magistrate’s Recommendation that Spain’s Motion to Dismiss the “Black Swan” case be granted. Odyssey objected due to the fact that the Recommendation failed to acknowledge the absence of a vessel on the “Black Swan” site as well as the commercial nature of the Mercedes' mission at the time of her demise, which would legally nullify the claim to sovereign immunity on that vessel. It also wrongfully concluded that a vessel and its contents could not be legally separated for the purpose of determining the rights of claimants.
February 13, 2009
Odyssey’s Response further states its position in the “Black Swan” case. This filing points out that most of Spain’s Reply, with a few noted exceptions, is a reiteration of its original Motion to Dismiss. But for the first time, Spain, in its Reply, acknowledged that there was no shipwreck at the “Black Swan” site and that the Mercedes carried private merchant cargo. Odyssey believes that the commercial nature of the Mercedes’ final mission defeats Spain’s claim of sovereign immunity. Further, the absence of a vessel on the site makes it impossible to say definitively that the site is the Mercedes.
November 17, 2008
Odyssey filed an extensive Response to Spain’s Motion to Dismiss the “Black Swan” case. In Odyssey’s pleadings, accompanied by over 1,000 pages of supportive documentation and imagery, Odyssey asserted that the “Black Swan” site and the cargo recovered do not represent an entity to which sovereign immunity would apply.
August 7, 2007
Docket 25 - Amended Complaint (~5 MB)
In 2007, Odyssey filed an arrest on the “Black Swan” site in US Federal Court, the only court in the world which presently provides a mechanism for protecting shipwreck sites beyond any country’s territorial waters. By properly filing this arrest, Odyssey asks the court to accept jurisdiction over the case and to award proper ownership over the site. The amended complaint was filed in response to Spain's Motions for More Definite Statements. Odyssey also filed a Motion for Protective Order in the case to protect the confidentiality of the Preliminary Site Assessments, which include detailed information about the archaeological and exploration activities at the sites to date.
All parties’ filings, as well as all supporting reports, affidavits, exhibits, and annexes are available for review here.
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