Spanish War Ship Sunk Since 1804, And Its Cargo, Immune From Suit In U.S. Under FSIA

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 things:

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 evidence.

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 the non-movant".

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...