A three-judge panel at the United States Court of Appeals for the
Eleventh Circuit in Atlanta has ruled against Odyssey Marine
Exploration Inc. in its long-running quest to keep the remains of a
19th century Spanish vessel it codenamed the “Black Swan.”
The three-judge panel heard oral arguments in the case on May 24.
The shipwreck was found off the coast of Portugal, and Odyssey, based
in Tampa, Fla., announced the discovery on May 18, 2007. Subsequently,
the Kingdom of Spain, the Republic of Peru and 25 individuals filed
ownership claims against the discovery, with Spain contending that the
“Black Swan” was a Spanish warship that sank in 1804, the Nuestra
Senora de las Mercedes.
The appeals court agreed with the lower courts that there was
sufficient evidence to establish that the “Black Swan” shipwreck was
the Mercedes for purposes of sovereign immunity by looking at the ship
in a larger, contemporary historical context.
Lower court ruling
On June 3, 2009, a Florida magistrate judge issued a report
concluding that the “Black Swan” was the Mercedes and as such, was
The magistrate judge further found that under the Foreign Sovereign
Immunities Act of 1976, the court was without jurisdiction to decide
on salvage and possessory claims and recommended that the district
judge grant Spain’s motion to dismiss and direct Odyssey to return the
shipwreck to Spain. The district court adopted the magistrate judge’s
report and recommendation in full on Dec. 22, 2009, dismissing
Odyssey’s amended complaint for lack of subject matter jurisdiction
and ordering the ship’s return to Spain.
The United States filed a Statement of Interest in support of Spain,
stating that it had a treaty obligation to afford sunken Spanish
warships the same protections and immunities from implied abandonment
and uncontested access and salvage as a sunken U.S. warship would
receive in U.S. courts.
On appeal, Odyssey, along with Peru and the 25 individual claimants
who had an interest in the cargo aboard the vessel, argued that the
district court erred by failing to use the proper summary judgment
standard and by failing to conduct an oral evidentiary hearing before
ruling on the motion to dismiss. The parties also continued to contend
that the district court erred in finding that the “Black Swan” was the
Mercedes and that as such it is entitled to sovereign immunity.
Judge Susan Harrell Black wrote the 54-page decision on behalf of the
three-judge panel, finding that proper procedures were followed and
the correct standards were applied in adjusting the case and that the
lower courts were correct in ordering the ship to Spain’s custody.
Identifying the Mercedes
The Mercedes set sail for Lima, Peru, on Feb. 27, 1803, and arrived
on Aug. 7, 1803. There, it took on property of Spanish citizens and
other items, including approximately 900,000 silver pesos, 5,809 gold
pesos and almost 2,000 copper and tin ingots. Also taken on board were
two obsolete bronze cannons for return to Spain.
Because of hostilities between France and Great Britain, the
Mercedes’ departure was delayed until March 31, 1804. On Oct. 5, 1804,
the Royal British Navy intercepted the Spanish squadron including the
Mercedes, and informed the Spanish that it had orders to detain the
ships and take them to England. The Spanish refused the order and
battle ensued. Just minutes after the battle began, the Mercedes
exploded. Partly as a consequence of this battle, Spain declared war
against Great Britain and entered into the Napoleonic Wars as an ally
The court found that the “Black Swan” was found within the zone Spain
had plotted as the likeliest area of attack, and that no other naval
vessel matching the Mercedes’ type sank in the zone during the time
period. The objects found at the site were consistent with a vessel
that exploded at the surfaces and the coins found were minted almost
exclusively in Lima and Bolivia no later than 1804. The cannons
matched the types that would be found on the ship, including the
obsolete type that was sent to be recycled.
While Odyssey argued that it had only recovered 595,000 coins and 33
to 50 cannons, the court found that argument unconvincing, noting,
“The failure to fully recover all artifacts carried by the Mercedes is
understandable considering the Mercedes exploded at the surfaces, sank
1,100 meters, scattered over a large area, and has been sitting on the
ocean floor for more than 200 years.”
The court also rejected Odyssey’s argument that the Mercedes was
serving in a commercial capacity and is not entitled to sovereign
immunity, finding that at the time it sank, the Mercedes was a Spanish
Navy vessel under the command of a Spanish Navy captain. While the
court acknowledged that the Mercedes did transport private cargo for a
charge, the transport was of a sovereign nature as providing
protection and safe passage of Spaniards’ property was a military
function of the Spanish Navy, especially in times of war.
Further, the court found the cargo aboard the Mercedes not severable
from the Mercedes itself, while recognizing that “no party has pointed
us to any case or statute that directly answers the question of
whether cargo aboard a sunken military vessel is entitled to the same
sovereign immunity as the sunken vessel.” The United States considers
the cargo of a shipwrecked U.S. military vessel part of the shipwreck
and it is given the same immunities as the shipwreck.
The appeals court ended by ordering Odyssey to release the recovered
objects from the shipwreck into Spain’s custody, concluding that the
district court was proper in ordering Odyssey to release the recovered
property to Spain’s custody.
On Sept. 21, Odyssey announced that it would request a hearing before
all Eleventh Circuit Court of Appeals judges. Melinda MacConnell,
Odyssey’s vice president and general counsel stated that while Odyssey
was disappointed by the ruling, “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.” ■