Odyssey Marine Exploration, Inc., a pioneer in the field of deep-ocean exploration, filed a Motion to Strike the amicus brief filed by the United States which is in support of Spain in the "Black Swan" case. In the alternative, Odyssey asks the Court to direct the United States to amend its statement of interest to accurately reflect its interest in the case. The "Black Swan" case is currently pending in the Eleventh Circuit Court of Appeals.
Odyssey was named in several U.S. State Department cables obtained and recently released by the website WikiLeaks. The released cables suggest that the U.S. State Department offered special assistance to Spanish officials in the "Black Swan" case in exchange for assistance in acquiring a French painting confiscated by the Nazis during World War II and now on display in a museum in Madrid.
"We have brought to the Court's attention the evidence suggesting that the involvement of the U.S. Executive Branch in the 'Black Swan' case goes beyond its interest in interpreting applicable laws. The U.S. Government's interest appears to have been related to a promise of support for Spain in exchange for assistance in obtaining this painting for a U.S. citizen. This calls into question whether there may have been any other offers of support in exchange for favors completely unrelated to this case. Any interest in the case of the U.S. beyond those stated in their filing should warrant striking the amicus brief or at the very least, require a full explanation of the motives behind their support of Spain," said Melinda MacConnel, Odyssey Vice President and General Counsel.
After reviewing the cables that were released, Odyssey CEO Greg Stemm sent a letter on behalf of the company and its thousands of shareholders to U.S. 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. Neither Odyssey nor Stemm has received a response to this request.
About the "Black Swan"
In May 2007, Odyssey announced the discovery of the "Black Swan," a Colonial-period site located in the Atlantic Ocean which yielded over 500,000 silver coins weighing more than 17 tons, hundreds of gold coins, worked gold and other artifacts. Odyssey completed an extensive pre-disturbance survey of the "Black Swan" site, which included recording over 14,000 digital still images used to create a photomosaic of the site.
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.
The Kingdom of Spain filed a claim to the treasure alleging that the coins originated from the Nuestra Senora de las Mercedes, a Spanish vessel which sunk in 1804. Spain claimed that it owned all of the coins and that the treasure was immune from the jurisdiction of the U.S. Court under the Foreign Sovereign Immunities Act (FSIA). Although it has not been conclusively proven the recovered cargo came from the Mercedes, Odyssey presented clear evidence to the trial court (including the ship's manifest) that shows the primary purpose of the Mercedes' last voyage was commercial in nature and the vast majority of coins on board were owned by private merchants, not by Spain. The United States filed an amicus brief in the case changing its previous position and supporting Spain in the "Black Swan" case by setting forth a re-interpretation of the language in the Sunken Military Craft Act (SMCA) to allow government-owned vessels on commercial missions to enjoy sovereign immunity. A number of individual private descendants (whose ancestors were transporting goods on the Mercedes) as well as the country of Peru have filed claims in the case. Without conducting a hearing, the district court sided with Spain and ruled that the treasure should all be turned over to Spain. The case is currently on appeal at the United States Court of Appeals for the Eleventh Circuit. For more information on the "Black Swan," visit www.shipwreck.net/blackswan.php.