Odessey Marine Exploration, Inc. v. The Unidentified
Shipwrecked Vessel, et al., No. 10-10269 (11th Cir. Sept.
2011), offers a glimpse into the fascinating world of maritime
jurisdiction of the federal courts, 200+-year old old shipwrecks of
Spanish war ships, wars between England and France, secret
agreements Spain made with France, and the business of Odyssey, a
deep-ocean exploriation and shipwreck recovery company. Even for
international law firms practicing international dispute resolution
or international transactions, the topics are not typical. However,
the decision also addresses several timely topics of international
litigation and dispute resolution and thus deserves a read.
Odessey, as part of its Amsterdam Project, located what has now
been found to be the Nuestra Senora de las Mercedes
(Mercedes), a Spanish vessel that sank in 1804 off the
coast of Gibraltar. Asserting claims in the Middle District of
Florida under the "law of finds" and the "law of
salvage", Odeyssey's claim was in rem and sought
the arrest of the ship as well as "its apparel, tackle,
appurtenances, and cargo". Spain, Portugal, and others
— 25 claimants — all made claims arguing that
they had an interest in the cargo. The Majistrate Judge determined
that the ship belonged to Spain, that the Foreign Sovereign
Immunities Act precluded U.S. jurisdiction, and that Spain should
be given possession of both the ship and its cargo (only a token,
symbolic piece of cargo was in the U.S.).
In affirming, the Eleventh Circuit ruled, among other
First, the Court of Appeals determined that the District Court
was not obliged to take the allegations of the complaint as true
when the subject matter jurisdiction of the federal court was
challenged. The court below was entitled to rely on extrinsic
Second, in making the subject matter determination, the court
was entitled to weigh the evidence independently, "and is not
constrained to view [the evidence] in the light most favorable to
Third, the District Court was not required to use the Rule 56
standard and was also not required to grant a hearing or permit
cross-examination. See Land v. Dollar, 330 U.S. 731 (1947)
("As there is no statutory direction for the procedure upon an
issue of jurisdiction, the mode of its determination is left to the
Fourth, the section of the FSIA found applicable was Section
1609, which, as we just blogged, has been viewed by
other Courts of Appeals as relating, not to finding original
jurisdiction, but finding jurisdiction to enforce judgments or
secure the attachment or (in this case) the "arrest" of
assets or other property. At the same time, "[w]hile the
Mercedes itself is not within the United States, that
alone does not defeat the court's ability to obtain
jurisdiction over it. This too should be compared to the Second
Circuit's decision in Walters v. Industrial and Commercial Bank of China, Ltd, et
al., Dkt. No. 10-806-cv (2d. Cir. July 2011), which held
that Section 1609 was available only with respect to property
located in the U.S.
Fifth, even acknowledging that the Supreme Court has left the
"critical term" "commercial" largely undefined,
the Court of Appeals found that the Mercedes was not
engaged in commercial activity even though "75% of the cargo
measured by value was privately owned, . . . , and Spain was not at
war when the Mercedes sank.
Finally, the Court of Appeals determined that comity dictated
that the Court treat the cargo like the vessel itself in terms of
granting it sovereign immunity protection. For this holding the
Court of Appeals needed to rely on the specific facts of the case
— i.e., "where the cargo was found aboard a sunken
active duty Spanish military vessel and was legally placed aboard
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