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Appeals Court Rules 'Black Swan' Treasure 'Unquestionably The Property Of Spain'; Odyssey Vows To Continue Court Fight

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TAMPA, Florida -- Odyssey Marine Exploration, Inc., today announced that it will request an en banc hearing (a hearing before all the Eleventh Circuit Court of Appeals judges) in the "Black Swan" case and will point out that today's decision by a panel of only three judges from the Eleventh Circuit affirming the district court's dismissal of the case is contrary to other Eleventh Circuit opinions and rulings by the United States Supreme Court.

In today's opinion, the appellate court agreed with the lower court's finding that the U.S. federal court lacked jurisdiction over property recovered by Odyssey from the Atlantic Ocean in 2007. The opinion concluded that the recovery was that of the sovereign immune shipwreck Nuestra Senora de las Mercedes, a Spanish vessel that perished in 1804, even though Spain's attorney admitted to the Eleventh Circuit panel that the majority of the coins aboard were not owned by Spain at the time of the sinking. Because no vessel was found or recovered at the site and identification was not certain, Odyssey code named the site "Black Swan." Odyssey argued that even if the recovered cargo had originated from the Mercedes, that vessel was primarily on a commercial voyage when it sank, and therefore should not be considered as a "warship" having immunity from the jurisdiction of the court. Judge Black, writing for the Eleventh Circuit, concluded that the Foreign Sovereign Immunities Act (FSIA) applied in the case because, "The shipwreck of the Mercedes is thus unquestionably the property of Spain." In an apparent contradiction however, the opinion also states, "We do not hold the recovered res is ultimately Spanish property."

Odyssey had also argued that sovereign immunity should not apply because Spain did not have possession of the recovered property, citing several cases requiring possession in similar admiralty cases, but the Court ruled that the FSIA does not require possession in order for a foreign country to claim immunity over its sunken warships. The appellate court also affirmed the trial court's order which directed Odyssey to return the property to Spain, but according to the district court's ruling, this order is stayed until the appeals process is complete.

"We are certainly disappointed by the Eleventh Circuit's ruling," said Melinda MacConnel, Odyssey's Vice President and General Counsel. "We believe the U.S. Constitution and all other applicable laws give jurisdiction to the U.S. courts to determine the rights of Odyssey, Spain and all other claimants in this case. Furthermore, we believe this ruling contradicts other Eleventh Circuit and Supreme Court opinions."

"While we were surprised by the ruling and are obviously not pleased with the opinion, there is no near-term economic impact on the company and our day-to-day business operations," stated Mark Gordon, Odyssey President and COO. "Since the original adverse ruling in the 'Black Swan' case, we have developed numerous shipwreck projects and opportunities to move the company forward. We have been successful in working with other governments on shipwreck projects that determine a salvage award in advance and we've had some very promising results on several recent projects which we expect to confirm very soon."

Views expressed in this article do not necessarily reflect those of UnderwaterTimes.com, its staff or its advertisers.

Reader Comments

7 people have commented so far. cloud add your comment

I believe it should go to the finders they put forth the effort and expense to find and bring it up its theres unless spain footed the bill i believe they shouldnt have any rites to any of it. its been lost this many years, next they will be claiming every ship that ever came or went from there ports as theres, not rite. it should be left to odyssey to determine what they want to do with it..
   comment# 1   - Ron · Reedsport USA · Sep 28, 2011 @ 5:35am

I believe OM should keep the bounty with no strings attached, I find it tasteless, Disgusting, Illegal and quite typical in this day and age that the US Government is as corrupt as it is. How dare they throw one of their own corporate businesses under the bus for the benefit of a single citizen? And who was this unnamed private citizen that would benefit from such a travesty of Justice. If spain wanted the treasure WHY did they not search for and recover it? Shame to the US Supreme court for being the puppets of corruption.
   comment# 2   - Joe · New York, USA · Jan 19, 2012 @ 12:30am

I didn't know Spain was looking for the Mercedes. Oh that right they were not ! Lame Spain!!! Everything they have done since the finding has been ridicules. Was Spain ever going to find that wreck? NO ! Why don't they feel great full that is was found at all. Oh but no, greed is all they feel . Big surprise! Spain has don't nothing positive from the start. They should get NOTHING. Odyssey should get it all and a thanks for what they have done. You do a job you get paid. Plain and simple
   comment# 3   - AJ · Chico, Ca · Jan 19, 2012 @ 4:24pm

Shouldn't the booty go to Peru? It was taken from their country.
   comment# 4   - Jose · Omaha, NE · Feb 3, 2012 @ 10:32am

I belive Hawai should be returned to Hawaian people
   comment# 5   - mariusz · canada · Feb 26, 2012 @ 6:43pm

I belive Canida should be returned to England people
   comment# 6   - zorro · spain, california · Mar 4, 2012 @ 9:23pm

I agree with another writer, it belongs to the People of Peru. It's plunder, it's been long known that Spain murdered and plundered the peoples of Peru. Why isn't Peru stepping up? Who agree's that Spain deserves those spoils? Only Spain, that's blood money.
   comment# 7   - Gary Bonner · Idaho Springs, CO USA · Mar 6, 2012 @ 8:06am
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