Jurisdiction

• Pages: 65-66

65

international law update Volume 17, July–September 2011

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

JURISDICTION

E C  

’    

   S   

     F

S I A  

      

Odyssey Marine Exploration is a deep-ocean

exploration shipwreck recovery business. In 2007,

during its Amsterdam Project, the company

discovered the remains of a 19th Century Spanish

vessel in international waters 100 miles west of the

Straits of Gibraltar. Odyssey ultimately discovered

and recovered several hundred thousand coins and

artifacts from the vast shipwreck. On April 9, 2007,

Odyssey then led a veried admiralty complaint

against “e Unidentied Shipwrecked Vessel” in

the Middle District of Florida, listing a possessory

and ownership claim. Odyssey then led a motion

for an order directing the clerk to issue a warrant of

arrest in rem against the shipwrecked vessel. After

Odyssey published a notice of arrest, Spain led

a veried claim to the vessel and its contents and

cargo, and a motion for a more denite statement

and for disclosure of other information identifying

the vessel. Spain also sought an order to dismiss

the complaint, vacate the arrest, and terminate

Odyssey’s appointment as substitute custodian.

e district court denied Spain’s motions, but

directed Odyssey to disclose certain information

relating to the vessel’s possible identity. Odyssey

stated that the site of the vessel might be related

to the to the Spanish vessel Nuestra Senora de las

Mercedes y las Animas. Spain then claimed that the

Mercedes was a Spanish Royal Navy Frigate that

exploded and sank in 1804 during combat and

was therefore subject to sovereign immunity from

all claims of arrest in the United States pursuant

to Foreign Sovereign Immunities Act (“FSIA”).

Accordingly, Spain led a motion to dismiss for

lack of subject matter jurisdiction. e magistrate

judge found that the vessel was the Mercedes and

the property of Spain, and concluded that under

FSIA, it did not have jurisdiction to adjudicate

the possessory claims. e district court adopted

the magistrate’s nding and dismissed Odyssey’s

complaint for lack of subject matter jurisdiction,

vacated the arrest and ordered the return of the

vessel’s contents to Spain. Odyssey appeals.

e United States Court of Appeals for the

Eleventh Circuit arms the district court’s nding

that the court did not possess subject matter

jurisdiction over the matter. e Court notes that

although the federal courts have exclusive power to

adjudicate in rem suits against a vessel, that power

is dependent on the court’s jurisdiction over the

vessel. However, if the vessel at issue is the property

of a foreign state, the federal courts only have

jurisdiction to arrest the vessel if authorized by the

FSIA. erefore, the Court analyzes whether the

vessel is the property of Spain and, if so, whether it

has jurisdiction over the vessel under FSIA.

e Court looks to the historical context of the

Mercedes and determines that the vessel found by

Odyssey is in fact the Mercedes, thereby belonging to

Spain. “In this historical context, the entirety of the

record evidence supports the district court’s conclusion

that the res is the Mercedes. e res was found within

the zone Spain had plotted as the likeliest area of

the Mercedes’ demise, and no other naval vessels

matching the Mercedes’ type sank within that zone

during the same time period. e site, essentially a

scattered debris eld, is consistent with a vessel that

exploded at the surface.” 657 F.3d 1173-74.

e Court goes on to determine whether the

FSIA applies to the arrest of the Mercedes. Section

1609 of the FSIA states that the property of a

foreign nation is immune from arrest if the property

is located in the United States. “e Mercedes is

Spain’s sovereign property that is within the United

States. While the Mercedes itself is not within

the United States, that alone does not defeat the

court’s ability to obtain jurisdiction over it. A court

may have either actual or constructive possession

over the res. . . . Odyssey has deposited parts of