Two cannons, one each from the 16th and 17th centuries, have been recovered from the ocean floor by a Spanish team working off Faro, ending a campaign in which the Spanish government managed to prevent a US company from claiming the contents of Nuestra Señora de las Mercedes.
Several pieces of the frigate, sunk in 1804 by the English navy, have been recovered with the use of a Remotely Operated Vehicle from the Spanish Institute of Oceanography. The two cannon were recovered from the wreck lying 1,000 metres below the surface.
The archaeologist, Pedro Barros, of the Directorate General of Cultural Heritage underlined the importance of the recovery of the cannons which will "help us understand life on board at that time and the circumstances of the sinking of the frigate."
The Nuestra Señora de las Mercedes (Our Lady of Mercy) was a Spanish Navy frigate sunk by the British off the south coast of Portugal on 5 October 1804, during the battle of Cape Santa Maria. At the time of the naval action, Spain and England were at peace with each other. The frigate was part of a small flotilla sailing from Montevideo to Cadiz, transporting silver and gold from Peru and vicuna, cinnamon and quinoa.
This flotilla was intercepted by a British Navy task force, commanded by Graham Moore aboard HMS Indefatigable, and ordered to change course and proceed to a British port for inspection.
The Spanish commanding officer, Brigadier José de Bustamante y Guerra (1759-1825) objected that the two nations were at peace, declared that they would not comply with the order, and ordered battle quarters, despite being outgunned and outnumbered.
A single shot from HMS Amphion, commanded by Samuel Sutton, hit the ship's magazine causing an explosion that sank the ship. 250 crewmen were lost, and 51 survivors were rescued from the sea
The United States company, Odyssey Marine Explorations, discovered the wreck and recovered almost 500,000 silver and gold coins in 2007, transporting them to the US. The value was estimated at 500 million US Dollars
A court case followed after Spain claimed the vessel carried its flag. Peru had claimed the treasure originally had been plundered by the Spanish but the court decided that the Spanish government was the rightful successor of interest because at the time of the wreck, Peru was considered a Spanish colony and not a separate legal entity, therefore it had no legal standing to be entitled to the proceeds of the lawsuit.
Next, a U.S. federal court and a panel from the US Court of Appeals upheld the Spanish claim to the contents of the ship and Spain took control of the treasure in February 2012.
A small number of coins and effects recovered from the ship were deposited in Gibraltar because they showed signs coherent with an internal explosion on the ship and confirmed Spanish claims that the wreck was the Nuestra Señora de las Mercedes.
These items were not returned to Spain until 2013, when a court finally ordered Odyssey Marine to return the missing pieces.
According to archaeologist Pedro Barros, in this third, "and probably last campaign," the Spanish archaeologists were accompanied by a Portuguese team, because the frigate had sunk near the Cape of Santa Maria, off the Algarve, within the Portuguese Exclusive Economic Zone.
Two cannons from the 16th and 17th centuries were found and recovered, each weighing between two and three tons, as well as a perforated copper plank, a faucet and three bronze pulleys.
Portugal could claim the artefacts but as Spain has spent so much time and effort keeping the Americans at bay, Portuguese archaeologists say that "the most important thing is that the pieces have been removed by scientific means and are safeguarded as public assets, instead of being in the hands of a private company for commercial purposes."
According to Pedro Barros, the pieces will now be studied and exhibited in Spain, "within two years."
Daylight after 213 years. One of the cannon from the frigate, Nuestra Señora de las Mercedes
Extract from Odyssey Marine Exploration Reports Fourth Quarter and 2010 Financial Results
"In April 2007, we found and recovered approximately 594,000 coins in the Atlantic Ocean approximately 1,100 meters deep, beyond the territorial waters or contiguous zone of any sovereign nation. We filed an Admiralty arrest for this site, and we were appointed substitute custodian for all artifacts recovered from the site. Odyssey code named the site “Black Swan.” In May 2007, the Kingdom of Spain filed a notice in this case stating that the Spanish government did not intend to give up rights to any Spanish property that might be on the site.
On April 11, 2008, Odyssey filed its responses to the Court’s interrogatories and identified the Nuestra Señora de las Mercedes (the “Mercedes”), a vessel assigned to transport mail, private passengers, consignments of merchant goods and other cargoes, as one vessel potentially related to the “Black Swan” site, although there is evidence that may contradict this hypothesis. Odyssey reiterated that no vessel has been found at the site, and stated that other hypotheses were also being explored. Spain then filed its answers to the Court’s interrogatories indicating that it had concluded that the vessel related to the “Black Swan” site was the Mercedes.
Spain filed a Motion to Dismiss the case on September 22, 2008, based upon the Foreign Sovereign Immunities Act (“FSIA”), alleging that the U.S. District court lacks jurisdiction. Odyssey filed a response on November 17, 2008, to which Spain filed a reply on January 26, 2009. Odyssey filed a response to that reply on February 13, 2009. Claims have also been filed in the case by the country of Peru as well as named individuals who assert an interest in property that was aboard the Mercedes. Those named individuals have specifically acknowledged Odyssey’s right to a salvage award in the case. On May 4, 2009, Peru filed its objection to Spain’s Motion to Dismiss that Spain filed on September 22, 2008.
On June 3, 2009, a Report and Recommendation (R&R) was filed by the Magistrate Judge which recommended Spain’s Motion to dismiss the case be granted. Six separate Objections were filed, including an Objection from Odyssey, Peru, and many claiming to be descendants of merchants who owned the private cargo on the Mercedes.
Odyssey’s objection included arguments that:
- the applied legal standard of review was incorrect (i.e., the motion must be denied because the factual questions regarding jurisdiction are intertwined with the merits of the case),
- there was no coherent vessel located at the "Black Swan" site,
- there is clear and convincing evidence of the commercial nature of the Mercedes' mission at the time of her demise, which Odyssey believes legally nullifies the claim to sovereign immunity of that vessel,
- a distinction between cargo and vessel is allowed and even required by settled admiralty law; and
- the majority of the coins aboard the Mercedes were merchant-owned, commercial cargo being shipped as freight for a fee and were never owned by Spain.
Spain filed a response to the Objections on August 31, 2009. Odyssey filed a reply to that response on October 15, 2009, reiterating that the R&R had applied the wrong legal standard of review and had incorrectly interpreted factual and legal issues. On October 14, 2009, Odyssey filed a response to a statement of interest filed in the case by the United States Department (DOJ) of Justice which, while not addressing the specific jurisdictional issue before the court, supported Spain’s argument that the Nuestra Senora de las Mercedes would have been considered a sovereign vessel.
The court denied Odyssey’s motion to file a declaration signed by the primary drafter of relevant legislation. A motion to file an amicus brief by members of Congress purporting to counter the DOJ filing was also denied.
On December 23, 2009, the U.S. District Judge adopted the Magistrate’s Report and Recommendation and dismissed the case based on lack of jurisdiction. The Judge ordered Odyssey to turn over the coins to Spain, but stayed that part of the order until the Eleventh Circuit Court of Appeals rules in the case, which serves to keep the coins in Odyssey’s possession pending the outcome of the case.
We filed our notice of appeal with the Federal District Court for the Middle District of Florida and Eleventh Circuit Court of Appeals on January 15, 2010, and filed the Initial Brief on appeal with the Eleventh Circuit on May 11, 2010. Spain issued its Response to our appeal on July 19, 2010, and Odyssey’s Reply to Spain’s Response was filed on August 19, 2010. The case was scheduled for oral argument in Atlanta, Georgia on March 4, 2011 but has since been changed to the week of May 23, 2011.
In its Initial Brief, Odyssey argued that the district court erroneously dismissed the case by using flawed legal analysis and by failing to acknowledge or understand several major aspects of the case, including the issue of sovereign immunity. The opening brief also points out several erroneous factual findings and legal conclusions made by the district court including the following:
Not having the benefit of Aqua Log, Inc. vs. State of Georgia, 594 F.3d 1330 (11th Cir. 2010) which was decided by the Eleventh Circuit three weeks after the district court’s dismissal of the Black Swan case, the district court incorrectly held that under the Foreign Sovereign Immunities Act (FSIA), a sovereign (Spain) was not required to have possession of property to claim sovereign immunity. In Aqualog, the Eleventh Circuit held that in in rem admiralty proceedings, a sovereign is indeed required to have possession.
Although the Aqualog case was an Eleventh Amendment case regarding the immunity of the state of Georgia, the Court addressed immunity for all sovereigns in such cases, including foreign countries like Spain.
The district court did not conduct an evidentiary hearing on the disputed issues of fact, unquestioningly accepting testimony presented by Spain. This was a violation of due process for all of the claimants as well as Odyssey.
The district court erred in failing to recognize that the Defendant in the case (an in rem proceeding) was NOT Spain or a vessel owned by Spain. The actual Defendant in the case was the group of coins and artifacts (the res in this case) discovered and recovered by Odyssey.
Descendant claimants have alleged to have ownership rights to the property recovered, claiming their ancestors placed it aboard the Mercedes (the vessel alleged by Spain to have been carrying the subject cargo) for shipment.
The district court completely misunderstood their relationship to the property, referring to them as “descendants of those aboard the Mercedes,” rather than the descendants of property owners.
Despite undisputed evidence to the contrary, the district court erroneously found that the Mercedes was not engaged in commercial activity. The majority of coins aboard the Mercedes were privately owned and commercially shipped, and the gun decks of the Mercedes had been reconfigured to accommodate paying passengers and cargo. In fact, in the aftermath of the sinking of the Mercedes, Spain went on diplomatic record to protest to the British government that the Mercedes was carrying private cargo and passengers, and therefore the British attack was an unwarranted provocation. Longstanding law, as codified in the FSIA and the SMCA (Sunken Military Craft Act) provides that a vessel is NOT entitled to foreign sovereign immunity if it was engaged in commercial acts.
The district court also failed to recognize that under well-established admiralty law, cargo may be separated from a vessel, and the cargo may be subdivided to determine competing claims of ownership and salvage.