Finders Weepers, Losers Keepers: The Eleventh Circuit Denies Salvage Company’s Claims to a Sunken Military Vessel Found in International Waters In Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel

Christine Nicole Burns | Note

In March 2007, Odyssey Marine Exploration, Inc. (Odyssey) discovered the remains of a shipwrecked vessel along with approximately 594,000 rare coins and other valuable artifacts spread over 40,000 square meters of the ocean floor in international waters 100 miles west of the Straits of Gibraltar. Eager to begin its recovery efforts, Odyssey filed a complaint in the United States District Court for the Middle District of Florida against “The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo,” simultaneously asserting a possessory claim pursuant to the law of finds and a salvage claim under the law of salvage. Shortly thereafter, the clerk issued a warrant directing the United States Marshal to take possession of a small bronze block recovered from the shipwreck to symbolize her arrest in rem and appointing Odyssey as the substitute custodian of the vessel and her artifacts until further direction from the court. Upon Odyssey’s publication of the notice of arrest, the Kingdom of Spain filed a claim to the vessel, its contents, and cargo, and subsequently filed a motion requesting more information identifying the vessel. Alternatively, Spain sought dismissal of Odyssey’s complaint, claiming that it failed to “describe with reasonable particularity the property that is the subject of the action” in accordance with the heightened pleading requirements for an in rem complaint in admiralty. In response, Odyssey filed an amended complaint in which it plead ignorance as to the identity of the wrecked vessel, responding to interrogatories from the court by stating only that the site may be linked to the NUESTRA SENORA DE LAS MERCEDES Y LAS ANIMAS (MERCEDES).

This disclosure prompted Spain to file a motion stating that because the MERCEDES was a Spanish Royal Navy Frigate, it was immune from arrest pursuant to the Foreign Sovereign Immunities Act (FSIA), and, therefore, Odyssey’s claims must be dismissed for lack of subject matter jurisdiction. Complicating matters further, Peru intervened, alleging that the treasure aboard the MERCEDES originated in Peru or was produced by the Peruvian people; therefore, the res belonged to Peru, not Spain. A total of twenty-five individual claimants also filed claims, twenty-four of whom alleged that they were descendants of individuals with valuable cargo aboard the MERCEDES. Despite Odyssey’s insistence that there was insufficient proof that the wreckage was actually that of the MERCEDES, the district court ultimately granted Spain’s motion to dismiss on December 22, 2009, with an order vacating the in rem arrest and ordering Odyssey to return the artifacts removed from the site. Odyssey, Peru, and the twenty-five individual claimants appealed. The United States Court of Appeals for the Eleventh Circuit affirmed the district court and held that because the sunken vessel was still the property of Spain, the vessel was immune from arrest under the FSIA and, therefore, all artifacts recovered by Odyssey must be surrendered to the Spanish Crown. Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1184, 2011 AMC 2409, 2440 (11th Cir. 2011), aff’g 657 F. Supp. 2d 1126 (M.D. Fla. 2009).