by Dave Gerard
There were a bunch of legal opinions in the case. I downloaded the first one I found.
This action between Odyssey Marine Exploration and the Kingdom of Spain adjudicates the right to possession and ownership of more than $600,000,000.00 in silver specie. This action presented from the outset not merely the dicey prospects of a damages action; this action presented a claim to ownership by a party holding-in-hand an enormous, historic trove of treasure, holding-in-hand riches “beyond the dreams of avarice.” A contest for $600 million—winner take all—is plenty sufficient to endanger any boundary, to awaken any frailty, and to excite any temptation.
Observing this contest evokes an ageless insight on money: She is the sovereign queen of all delights; For her, the lawyer pleads and the soldier fights.2
I read, and began to piece together the history of the case. After Odyssey Marine filed for ownership of the Mercedes in Florida court, Spain intervened in the case. Intervention is where someone else with an interest in a case joins the lawsuit. Spain had an interest in the Mercedes, so she intervened and told the Florida court that the Mercedes belonged to her, not to Odyssey, which had dredged up the ship, stolen her silver, and disturbed the bones of Spanish sailors long at rest. Odyssey countered that the Mercedes had been lost and abandoned for centuries, and never would have been found if not for Odyssey’s efforts.
So the Florida court had to decide whether to give the ship to the owner or the finder. The key to the whole thing was sovereign immunity. Sovereign immunity is the legal doctrine that makes the property of one country immune from prosecution in the courts of another. It’s recognized in one form or another by most courts around the world. It helps keep the peace.
It’s complicated, but the law of sovereign immunity in the U.S. basically works like this: if the Mercedes was acting in a “sovereign capacity,” like a warship, then she was immune, and belonged to Spain. If she was acting in a “commercial capacity,” like a merchant ship, then she was not immune, and belonged to Odyssey.
To answer this question, the court had to delve into the geopolitics of 19th-century Spain. It made for fascinating reading. I closed my door, blocked out the present, and stepped back into the past.
In the late 18th century, Spain and Britain fought as allies against France. This was the heady era of the French Revolution, after the French rose up and beheaded their King, Louis XVI. The other European monarchs were terrified that they would get the same. So they banded together and set out to crush the Revolution in its cradle. But this proved more difficult than they had anticipated. A French general named Napoleon Bonaparte rose to power, and led the armies of France to throw back every nation ranged against them.
In 1796, Spain switched sides. She signed the Treaty of Ildefonso, secretly promising to support France against Britain. Then, in 1802, Britain signed the Treaty of Amiens with Napoleon. Amiens brought a short-lived peace to these eternal adversaries, and to all Europe.
Spain used the peace of Amiens to collect money from her viceroyalties around the world. The Mercedes was ordered to Peru by the ruthless Spanish Generalissimo Manuel Godoy, who was nicknamed “the sausage maker.” There, the Mercedes was to pick up silver bullion and then return to Spain.
The Mercedes took on an enormous amount of silver in Peru, as well as other cargo like copper, tin, Church funds, military payroll, and even tree husks. It also took money from private citizens, to be shipped across the sea. In all, the Mercedes was loaded with approximately 900,000 silver pesos, and sailed with a fleet of three other ships back to Spain.
But on the way home, the fleet was intercepted by a British naval squadron. Evidently, the British knew that Spain was secretly supporting France under the Treaty of Ildefonso. And they didn’t believe the peace with Napoleon would last. So they ordered the Spanish fleet to port.
The Spanish refused, and the British opened fire. At the outset of the battle, the British landed a single shot to the Mercedes’ powder magazine, destroying the entire ship in a single spectacular explosion and killing all of the hundreds of people aboard. The other Spanish ships surrendered immediately. Later, Spain declared war against Britain, and entered the Napoleonic Wars on the side of France.
The upshot of all that history was this: even though Britain and Spain weren’t technically at war when the Mercedes sank, the Mercedes was acting in a military, sovereign capacity when she went down. That meant the ship was entitled to sovereign immunity and belonged to Spain.
Odyssey had one last card to play. And it was a clever one. Odyssey argued that even if the Mercedes herself was sovereign property, her cargo—six hundred million dollars’ worth of silver—was not. Transporting money was something that merchants did, not sovereigns, Odyssey argued.
But the court said no. It declared that the ship and her cargo were one and the same under the law. It looked to some other laws, called the Sunken Military Craft Act and the Abandoned Shipwreck Act. The court reasoned that these laws were similar, if not identical. So the court extrapolated their logic to say that the Mercedes and her cargo were inseparable.
Besides resolving Odyssey’s claim, this also allowed the court to deftly sidestep perhaps the most delicate question in the case—which had to do with Peru.
You see, the silver aboard the Mercedes had been taken from the mines of Peru. Peru was then a colony of Spain. Spain conscripted the indigenous natives and forced them to work in the silver mines under harsh conditions. Some twenty years after the Mercedes sank, Peru declared its independence from Spain.
So Peru intervened in the modern Odyssey Marine case, and argued that it had a patrimonial right to the silver. Peru argued that Spain couldn’t say with a straight face that Odyssey had stolen its silver, when Spain had stolen that very silver from Peru in the first place.
The court said some nice words about Peru, but in the end, it sided with Spain. By ruling that the ship and its cargo were one and the same, the court was able to dodge the delicate question of who was right and wrong in the colonial age, hundreds of years ago. The court said it had no jurisdiction, and dismissed the case based on sovereign immunity. But it nonetheless ordered the silver returned to Spain.
After that, to add insult to injury, the court made Odyssey pay Spain a million dollars in attorney’s fees for bad faith litigation. The court said that Odyssey had concealed the identity of the wreck to keep Spain in the dark. Nowadays, Odyssey didn’t do much treasure hunting anymore. It wasn’t hard to see why.
The case left a bad taste in my mouth. It didn’t seem fair. The treasure never would have been found if not for Odyssey. And the silver had originally belonged to Peru. I thought each of them should have gotten a share at least. But as Remington was wont to say, the law isn’t always fair.
The Eleventh Circuit’s opinion in Odyssey Marine didn’t have the flair of Judge Gewin’s opinion in the Atocha case. But it was thorough and well written, and had an understated solidity that I liked. I looked up the judge who wrote it. Her name was Susan Black. She was the first woman to be appointed to the Eleventh Circuit Court of Appeals.
By the time Cindy returned from lunch, I had figured it out. I knew what Remington meant when he said it was crazy for Rockweiller to have filed the case in Florida. Cindy sat down in my office, and I explained it to her myself.
“In Odyssey Marine, the court ruled in favor Spain, and against Odyssey,” I said. “They gave everything to the owner of the ship, and nothing to the finder.”
“Right,” said Cindy.
“If the Florida court in the Flor de la Mar case follows that ruling, then it would give the whole ship to Portugal, and nothing to Rockweiller.”
“Yes.”
“Odyssey Marine was decided by the Eleventh Circuit. So if it’s binding precedent in Florida…”
“Which it is.”
“…Then the outcome in the Flor de la Mar case has to be the same. Which mean
s if Portugal intervenes—as it surely will—the court will give the Flor de la Mar and everything in it to Portugal, with nothing to Rockweiller.”
“Exactly.”
I sat back and tried to make sense of this. “Anywhere else, they would have had a shot,” I said wonderingly. “They could have filed in New York. Or Washington D.C. Hell, they could have filed in Texas. None of those courts are bound by the Eleventh Circuit. It could come out differently.”
“Yep.”
“But they filed in Florida.”
“Mmhm.”
“But why? It doesn’t make any sense. Don’t they know this?”
“I’m sure they do. Bock & Co. may be assholes, but they’re not stupid.”
“No. So what game are they playing?”
“I have no idea,” she said.
Soon enough, the reason that Rockweiller had filed in Florida became clear. It emerged in the news over the next several days. I saw it on MNN, the Maritime News Network, a show in the high seven-thousands (channels, that is) that reported exclusively on maritime news. This might be anything from the movement of the U.S. Seventh Fleet in the Pacific to tracking the progress of a container ship, complete with hours-long footage and running commentary.
The main anchor on MNN was Rufus Rockaway. He looked like a character from a bad 80s sitcom. Rockaway had a big red afro that he wore above turtleneck sweaters and green suit jackets, even though he lived in Florida. There was also a part-time anchor named Katie Tyler. She was an older blond lady who seemed normal by comparison. Tyler was patched in from a different location, so they had split-screens when they talked.
MNN had been reporting on the case non-stop for the last couple of days. I had begun to keep them on in the background on a small TV I had in my office. I wanted to stay up to date on any new developments. I also found them entertaining, in a guilty sort of way.
A few days after the story broke, I saw Rufus Rockaway flashing pictures of Queen Isabella and King Ferdinand of Spain across the television. Notwithstanding that this was the wrong country, and the wrong time period, I sensed something was up, and switched on the sound to listen.
“…a deal with Portugal. Sounds like a treaty of eternal friendship to me, doesn’t it Katie?” Rockaway was saying.
“It sure does, Rufus, it sure does.” “Let’s just hope this treaty lasts longer than my last marriage, Katie,” said Rufus, chuckling at his own joke.
Katie chuckled right back and made an oh stop! motion across the screen.
“Do you think they exchanged friendship bracelets, Katie?” Rufus asked.
“They probably exchanged binding legal documents, Rufus,” said Katie.
“Oh, you!” replied Rufus. He flipped his hair in that signature way that he had.
“Well, if this deal holds up, it seems like Portugal and Rockweiller Industries will both be big winners from the Flor de la Mar…”
I muted the TV and pulled up the real news online. There were a number of reports that Portugal had made a deal with Rockweiller on the Flor de la Mar. One local Florida paper ran the headline “Deal of the (Sixteenth) Century?” and reported on a statement from Portugal. It was a fluff piece from the Portuguese Ministry of Foreign Affairs.
In acknowledgement of the ground-breaking work that Rockweiller Industries has done in locating this long-lost relic of Portuguese history, and the work they will continue to do in salvaging and restoring the Flor de la Mar, the nation of Portugal has entered into a mutually beneficial agreement with Rockweiller Industries…all historical items of Portuguese ownership will be retained by Portugal, with the remainder of the cargo to be shared between Portugal and Rockweiller Industries pursuant to an agreement, the details of which are confidential…
The financial papers reported a jump in Rockweiller’s stock as the market tried to price in the value of the find. Even though Rockweiller was a big company, a piece of the Flor de la Mar could put a boost in its revenue numbers for years, one analyst said.
I called Cindy. “Are you seeing this?” I asked.
“You’re not watching MNN again, are you?”
“No,” I lied. “Have you seen the reports about the deal with Portugal?”
“Yep.”
“That’s why they filed in Florida,” I said heavily. “Because Portugal is on their side.”
“Yep.”
“So Portugal gets ownership under the Eleventh Circuit ruling. And Rockweiller gets ownership under a contract with Portugal.”
“It would seem so.”
It would seem so, indeed. We’d been outfoxed.
That evening, I ordered Chinese food. The remains of yesterday’s dinner (the same thing) were still sitting on my counter, with chopsticks sticking out the top. I wondered why I ate Chinese food with chopsticks when no one was watching, when it was easier with a fork. Lacking answers, I slumped down on the couch and flipped on an episode of The Dominator.
Later that night, I called Ashley. She usually finished her shift at the bar this time on weekdays. She picked up after a couple of rings.
“Hello?”
“Hey. It’s me.”
“Hey.” There was a pleasant moment of silence.
“You know, you’re the only person that calls me,” she said. “You and this one weird cousin. Everyone else texts.”
“Well. I’m your lawyer. I figure I should call. Plus if I give you legal updates by text message they will end up as Exhibit A in a malpractice suit someday.” She laughed.
I told her about the developments. She had heard about the lawsuit, and we took a moment to marvel at the fact that we were right. The Flor de la Mar was real, and Rockweiller had found it. Then I explained Rockweiller’s legal maneuver, and what it meant for our case. That we had lost our leverage and would have to go back to doing things the old-fashioned way.
Ashley took it in stride. “That’s okay,” she said. “I never expected this to be easy. We’ll get it eventually. I trust you.”
Although Ashley didn’t seem to need consoling, I did. The next day, I made my way to Kruckemeyer’s office. I slumped into one of his chairs, deflated. Kruckemeyer pulled himself away from an email he was typing, annoyed. But when he saw my expression, he became sympathetic.
“You alright there, Jack?” he asked gently.
“I guess,” I said, dejected. He nodded.
“Look, I know we were on the edge of a big win here. And it got ripped away. I’m sorry about that. I’ve been there. You’ve just got to roll with the punches.”
“I know.”
“Don’t feel so bad. You did a good job. Figured all this stuff out before anyone else did. Hell. And remember, we still got a real case. All this treasure stuff, that’s not what this is about.” He waved his hand. “It’s about your boy. David Marcum. Kid got killed. And we need to find out who done it.”
“You’re right,” I said, nodding resolutely. “We do.”
“That’s it,” he said. “Get after it. Put that clever brain of yours to work.” I got up, feeling just a little bit better about things. Kruckemeyer saw it and nodded approvingly. He turned back to his screen as I headed out the door. “Oh, and one more thing,” he said. “We’ve got a motion for summary judgment coming up in the class action case. Going to need a draft from you soonest.”
After that, things slowly got back to normal. I went back to work on my other cases. The summary judgment brief was a lot of work. Summary judgment is when you ask the judge to toss out a case. A lot of times, it’s the turning point in a lawsuit. If we won, the class action would be over. If we lost, the client would pay lot of money to settle. Otherwise, they would have to face a jury. An insurance company would rather be staring down the barrel of a loaded gun than do that. So I began the grueling amount of legal research that was required to write a fifty-page insurance class action brief.
> I also fought with H. Hubert Thung over piddling discovery matters in the Mongolian barbeque case. Thung was a tool. But compared to Badden & Bock, dealing with him was peanuts. Thung kept asking me to “meet and confer,” but I had no interest in spending an afternoon with him. So I played the same tricks that Bock & Co. had used on me. Thung wasn’t sharp enough to catch on, and I was able to delay as weeks stretched into months.
Meanwhile, I followed the Flor de la Mar case from the sidelines. But MNN was on in my office less and less. I felt sad as I watched the world marvel at a ship whose secret was no longer mine. No one made the connection between the Flor de la Mar and our little lawsuit in Texas. There were no calls asking about David Marcum. But although the world might not care, I did, and I was determined to find out what had happened to him.
Since the Flor de la Mar went public, it was hard to get Badden & Bock to respond to my inquiries. They seemed to have little interest in the Marcum case now. They barely answered my discovery letters, and when they did, it was with none of their usual vitriol. Absurdly, I felt sad. As if they had moved on. We were small fish now that the Flor de la Mar was out of the bag, I guessed. They had bigger things to do.
Nonetheless, I was determined to make them play ball, whether they wanted to or not. The first thing we needed to do was line up the deposition of Lloyd Gunthum. Gunthum was the key player in this. Remington was going to take his deposition personally. I had confidence he would be able to get the truth.
I started working up an in-depth deposition outline for Remington. He didn’t need it. But I needed to do it. I pulled every single document related to Lloyd Gunthum or the Excelsior. I analyzed and summarized them and sent the important ones to Remington. He would write back with questions and more document requests, and I went back to the files and answered them. I learned a lot about deposition prep from this, so the time was well spent.