It might be time to say good bye to the summer but not to the Black Swan odyssey. Just last month, on September 21, Odyssey Marine Exploration, Inc., publicly traded company, announced that it will request an en banc hearing before the Eleventh Circuit Court of Appeals judges in the “Black Swan” case. Three judges of the Eleventh Circuit already dismissed the case but “baby needs new shoes” and so the legal battles rages on.
The September opinion upheld the lower court’s finding that the U.S. federal court lacked jurisdiction over the ship and its cargo recovered by Odyssey from the Atlantic Ocean in 2007. The opinion confirmed that the finding was that of the sovereign immune shipwreck Nuestra Senora de las Mercedes, a Spanish vessel sunk in 1804. Judge Black, writing for the Eleventh Circuit, concluded that the Foreign Sovereign Immunities Act (FSIA) applied in the case because, “The shipwreck of the Mercedes is thus unquestionably the property of Spain.” In an apparent contradiction however, the opinion also states, “We do not hold the recovered res is ultimately Spanish property.”