Spain has filed it's dispositive motion (36 pages with 862 pages of exhibits) and it relies totally on the assumpsion that the Black Swan recovery was that of the Frigate of War Nuestra Señora de las Mercedes, a warship of the Royal Navy of Spain. Odyssey's defense now will be to convince Judge Pizzo that the shipwreck is not that of the Mercedes; or, that the Mercedes was on a commercial endeavor when sunk, and therefore was not a warship and not subject to sovereign immunity. Interestingly, Spain has asserted that there was evidence of a shipwreck at the site and that this evidence came from Odyssey's own data. Odyssey has claimed that there was no evidence of a shipwreck, only the [abandoned?] cargo and artifacts.
The headings of the filing are given below.
The original document can be seen here: http://docs.justia.com/cases/federal/district-courts/florida/flmdce/8:2007cv00614/197978/131/0.pdf
I. FACTS AND PROCEDURAL HISTORY
A. The Warship Mercedes of the Royal Spanish Navy.
B. Odyssey’s Unauthorized Disturbance of the Mercedes and Concealment
of Its Identity.
....1. Spain’s Express Preservation of Title and Refusal of Salvage.
....2. Odyssey’s Knowing Disturbance of the Mercedes.
C. The Mercedes Is the Defendant in This Case.
....1. Odyssey Retrieved the Artifacts From the Site Where the Mercedes
.......Exploded and Sank in 1804.
....2. The Defendant Is a Spanish Warship That Exploded and Sank.
....3. Artifacts Taken By Odyssey And Those Remaining At The Site Point
.......Specifically To The Mercedes.
III. ODYSSEY CANNOT BE ADJUDGED OWNER OR SALVOR IN THIS
CASE BECAUSE THE DEFENDANT IS SUBJECT TO IMMUNITY.
A. The Foreign Sovereign Immunities Act Mandates Dismissal of Odyssey’s
....Claims.
B. The Immunities of Warships Under International and U.S. Law Further
....Preclude Odyssey’s Claims Against the Mercedes.
IV. ODYSSEY’S CLAIMS ALSO FAIL BECAUSE SPAIN HAS NOT
ABANDONED THE MERCEDES AND HAS EFFECTIVELY REFUSED
SALVAGE.
A. Odyssey May Not Obtain Ownership Because Spain Has Never
....Abandoned the Mercedes.
B. Odyssey Is Not Entitled to a Salvage Award.
....1. Spain Has Refused Salvage.
....2. Odyssey Has Disqualified Itself From Any Salvage Award.
CONCLUSION
"For the foregoing reasons, Spain respectfully requests that the Court dismiss plaintiff’s remaining claims against the Defendant res, vacate the arrest issued on April 7, withdraw Odyssey’s designation as substitute custodian, and direct that the artifacts in Odyssey’s custody be promptly returned to the custody of Spain.