Firm says U.S. gov't brief not linked to Spain treasure battle

Miami, Sep 3, 2009 (EFE via COMTEX) -- OMEX | Quote | Chart | News | PowerRating -- By Emilio J. Lopez. ).- The Florida treasure-hunting firm battling Spain in federal court over rights to more than $500 million in gold and silver coins said Thursday that that motion filed by the U.S. government in support of Madrid does not directly bear on the case.

The "clarification" of U.S. policy on the principle of sovereign immunity of warships "is not directly related to the case," Odyssey Marine Exploration, Inc. told Efe.

Odyssey based its stance on two things: first, no vessel has been found in the spot where the treasure was located, which the company calls "Black Swan."

Second, the firm says that if the recovered coins and other objects came from the Spanish warship Nuestra Señora de las Mercedes, the vessel "was on a commercial mission at the time of its disappearance."

In that regard, Tampa-based Odyssey insisted that, despite the report provided to the court by the U.S. Justice Department, "the applicable treaties" say that ships protected by the principle of sovereign immunity cannot be on "commercial missions."

The Justice Department document took the form of a friend-of-the-court brief submitted last week to federal Judge Steven Merryday, who is weighing Odyssey's challenge to another judge's recommendation that the treasure be handed over to Spain.

In the brief, and with the aim of defending Spain's interests in the case, the United States evoked a 1902 friendship treaty between Washington and Madrid.

The motion was presented four days before the Spanish government responded, last Monday, in the Tampa court to Odyssey's objections, according to which it opposes the recommendation of Magistrate Mark Pizzo to turn over to Spain the 594,000 silver and gold coins.

In his June 3 report, Pizzo said Spain had demonstrated that the source of the treasure Odyssey salvaged from Atlantic waters in May 2007 was the Mercedes, a Spanish navy frigate destroyed in battle in 1804.

Pizzo concluded the wreck and its contents were subject to the principle of sovereign immunity and that the loot should be handed over to Madrid.

The Mercedes sank in action against a British fleet on Oct. 5, 1804, off the coast of southern Portugal, and Spain is invoking not only a claim to the vessel and cargo, but a right to preserve the gravesite of more than 250 Spanish sailors and citizens who went down with the frigate.

Besides the motion supporting Spain filed by the Justice Department, the court is relying on the report of U.S. Navy Vice Adm. James W. Houck and the statements of senior State Department official David Bolton and National Park Service archaeologist Larry E. Murphy.

Houck expressed his conviction that the bilateral treaty between the United States and Spain demands that sunken Spanish warships that have not been abandoned, even if they are not in U.S. waters, must receive the same protection and immunity that would be accorded to U.S. warships.

However, Odyssey says that "it is not accepted legal practice for ships of the U.S. Navy to ... transport private goods, commercial property and passengers, as is the case with the Las Mercedes."

Odyssen desired to make clear that Judge Merriday is not obligated to adhere to the stance of the Justice Department or follow its lead.

The firm announced that it is planning to present its objections to the Justice Department report and contest the response of Spain.

Spain's lawyer in the case, James Goold, said that the documentation presented by the United States proves that Washington has "great interest" in preserving international principles and supports Pizzo's decision, a position that he calls "absolutely correct." EFE

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