WikiLeaks and Art Law?! Black Swan Affair Gets Wind to its Sail

January 7, 2011

On January 6, 2011, Bloomberg news reported that Florida-based deep-sea explorer, Odyssey Marine Exploration, is using documents released on WikiLeaks to force the U.S. government out of their legal battle with Spain over a shipwreck treasure — 17-tons of gold and silver coins.

Wikileaks, supposedly revealed that the U.S. State Department had offered to help Spain’s side in the matter in exchange for help in returning a multimillion-dollar painting — seized by World War II-era Nazis — to a U.S. citizen.

To remind you of the dispute: in 2007, Odyssey discovered a sunken Spanish galleon off the cost of Portugal, in international waters of the Straits of Gibraltar at a depth of approximately 1100 meters. Statement regarding Odyssey Appellate Brief made in May 2010 describes Odyssey’s actions, i.e. efforts to document the site and remove the treasure.  Odyssey named the trove “The Black Swan.” However, Spain claims it to be the Nuestra Senora de las Mercedes, a Spanish warship that exploded in 1804 due to an engagement with the British.

Odyssey’s findings were contend by two sovereigns (Spain and Peru) as well as twenty-five descendants of those aboard the Mercedes and the salvage company itself. Spain’s position was as following: the shipwreck was unquestionably the remnants of the Mercedes; Spain had not abandoned its sovereignty of the vessel and thus under applicable treaties and Executive Branch directives, Spain’s warship should be accorded the same respect as those of the United States.” 22 Fla. L. Weekly Fed. D 128, *3.

The Republic of Peru, which came into existence after 1804, “asserts a “conditional claim” to “all of its property and patrimony,” namely that specie minted in or produced from ore extracted from Peruvian territory. *6-7. On its own behalf, Odyssey, argued that their finding were not those of the Mercedes but an amalgamation of shipwrecks none of which were the Mercedes.

In 2009, Federal Court ruled for Spain. Odyssey Marine Exploration, Inc. v. Unidentified, 2009 U.S. Dist. LEXIS 119088 (M.D. Fla. June 3, 2009). The opinion is being appealed.

A copy of Odyssey motion urging Middle District Court of Florida “to throw out a “friend of the court” brief by the U.S. government supporting Spain” is not available yet.  According to the Associated Press the State Department had no immediate comment.