Odyssey Files Response to Motion to Dismiss in Black Swan Case

Posted on December 2, 2008

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Ever wonder what $500 million in old coins would look like?  Now ya know.

Ever wonder what $500 million in old coins would look like? Now you know. Greg Stemm of Odyssey Marine takes a look at his booty.

On November 18, 2008, Odyssey Marine Exploration filed their response to Spain’s Motion to Dismiss or for Summary Judgment.  Odyssey has kindly made that response available for download, along with the over 1,000 pages of reports, affidavits, exhibits, and annexes, here.  However, before you go clicking away, I’ll warn you that the download is over 100 megabytes!  But, because I love my readers, here’s an early Christmas present, from me to you: Response without exhibits, 1.7MB.

Ok, maybe its not as good as a box of chocolates, but you can find some whoppers in there.  (Absolutely kidding!)  Its the expected argument in a clear, concise motion.  Here’s my synopsis:

Odyssey sues the coins they got from the ocean floor so they can keep them. (Don’t worry, they’re not crazy.  This is the way things are done.)

Spain asks to dismiss based on lack of subject matter jurisdiction in that they are a sovereign entity.  They argue that the coins were theirs, so the coins are sovereign immune under the Foreign Sovereign Immunity Act.  This is usually used when a shipwreck is a military ship, because until a State has disclaimed their property, they still own it.  So Spain asserts that Odyssey got the coins from the shipwreck is of Nuestra Senora de las Mercedes, that its a sovereign ship, and that the U.S. District Court court doesn’t have jurisdiction over them or their coins (e.g., Odyssey needs to get their mitts off of the treasure.)

Enter Odyssey, stage right, who has some pretty good attorneys by the way. They argue, (1) that there is no ship, and no proof that the Mercedes is where the coins originated. There were just a bunch of coins scattered about on the ocean floor. (In another part of the motion, Odyssey points out the coins were salvaged in an archaeologically-sound manner).  Therefore, sovereign immunity doesn’t apply.

They back it up with (2) even if the coins came from the Mercedes, they aren’t sovereign immune for a couple reasons.  First, the Mercedes is not sovereign immune because it was not exclusively noncommercial at the time of its sinking (was carrying commercial cargo and passengers).  Second, the specific journey the Mercedes was on at the time of its sinking was primarily commercial.  Finally, most of the Mercedes cargo was commercially owned and therefore wouldn’t be sovereign immune.

My prediction is that Odyssey will win this round.  Spain has not established that there was a cohesive vessel (a ship), or that the ship really was sovereign in light of its commercial use, or that the coins came from the Mercedes, or that the coins themselves are sovereign property.  At the very least the matter warrants further jurisdictional discovery.  But, we’ll see.  I’ll certainly keep you updated when the court issues its ruling.

Here’s the article where I ganked the photo from:

Colonial-era shipwreck yields $500 million in gold, silver coins


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