                                                                           [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               SEP 21, 2011
                                No. 10-10269
                                                                JOHN LEY
                          ________________________                CLERK

                   D. C. Docket No. 8:07-cv-00614-SDM-MAP

ODYSSEY MARINE EXPLORATION, INC.,

                                                   Plaintiff-Appellant,

                                      versus

THE UNIDENTIFIED SHIPWRECKED VESSEL,
its apparel, tackle, appurtenances and cargo located within center point
coordinates, In Rem.

                                                   Defendant,

KINGDOM OF SPAIN,

                                                   Claimant-Appellee,

REPUBLIC OF PERU,
GONXALO DE ALIAGA,
the Count of San Juan de Lurigancho,
AGUSTIN DE ALIAGA,
the current Marques de Zalada del Fuente,
GONZALO ALVAREZ DEL VILLAR, et al.,

                                                   Claimants.
                          ________________________

                                No. 10-10317
                          ________________________

                   D. C. Docket No. 8:07-cv-00614-SDM-MAP

ODYSSEY MARINE EXPLORATION, INC.,


                                                   Plaintiff,

                                      versus

THE UNIDENTIFIED SHIPWRECKED VESSEL,
its apparel, tackle, appurtenances and cargo located within
center point coordinates, In Rem,

                                                   Defendant,

GONZALO DE ALIAGA,
the Count of San Juan de Lurigancho,
AGUSTIN DE ALIAGA,
the current Marques de Zelda del Fuente,
GONZALO ALVAREZ DEL VILLAR,
IGNACIO DE COLMENARES,
the 11th Count of Polentinos,
ALBERTO EMILIO THIESSEN,
ENRIQUETA PITA DUTHURBURU,
FLORA LEONOR PERALES CALDERON DE COLMENARES,
FELIPE VOYEST,
ADELA ARMIDA DE IZCUE BAZO,
CAROLA DAIREAUX KINSKY,
ELEONORA DIAREAUX KINSKY,
MATILDE DAIREAUX KINSKY,
JULIO VEGA EURASQUIN,
INEZ MARQUEZ OSORIO,

                                         2
JAVIER DE GOYENECHE,
the current Count of Guaqui and Marques de Villafuente,
JUAN MARIANO DE GOYENECHE Y SILVELA,
the current Marques of Casa Davila,

                                                   Claimants-Appellants,

KINGDOM OF SPAIN,

                                                   Claimant-Appellee.

                          ________________________

                                No. 10-10318
                          ________________________

                   D. C. Docket No. 8:07-cv-00614-SDM-MAP

ODYSSEY MARINE EXPLORATION, INC.,

                                                   Plaintiff,

                                      versus

THE UNIDENTIFIED SHIPWRECKED VESSEL,
its apparel, tackle, appurtenances and cargo located within
center point coordinates, In Rem,

                                                   Defendant,
ELSA DORCA WHITLOCK,
f.k.a. Elsa Dorca Ruiz,

                                                   Claimant-Appellant,

KINGDOM OF SPAIN,

                                                   Claimant-Appellee.

                                         3
                          ________________________

                                No. 10-10319
                          ________________________

                   D. C. Docket No. 8:07-cv-00614-SDM-MAP

ODYSSEY MARINE EXPLORATION, INC.,

                                                   Plaintiff,

                                      versus

THE UNIDENTIFIED SHIPWRECKED VESSEL,
its apparel, tackle, appurtenances and cargo located within
center point coordinates, In Rem,

                                                   Defendant,

REPUBLIC OF PERU,

                                                   Claimant-Appellant,

KINGDOM OF SPAIN,

                                                   Claimant-Appellee

                          ________________________

                                No. 10-10320
                          ________________________

                   D. C. Docket No. 8:07-cv-00614-SDM-MAP

ODYSSEY MARINE EXPLORATION, INC.,

                                                   Plaintiff,

                                         4
                                      versus

THE UNIDENTIFIED SHIPWRECKED VESSEL,
its apparel, tackle, appurtenances and cargo located within
center point coordinates, In Rem,

                                                   Defendant,

SANTIAGO DE ALVEAR,
EMILIO DE ALVEAR,
MARIA EUGENIA SOLVEYRA,
ALEJANDRO JULIAN PERA BARTHE’,
AGUSTINA SOLVEYRA,
IGNACIO SOLVEYRA,

                                                   Claimants-Appellants,

KINGDOM OF SPAIN,

                                                   Claimant-Appellee.

                          ________________________

                                No. 10-10374
                          ________________________

                   D. C. Docket No. 8:07-cv-00614-SDM-MAP

ODYSSEY MARINE EXPLORATION, INC.,

                                                   Plaintiff,

                                      versus

THE UNIDENTIFIED SHIPWRECKED VESSEL,
its apparel, tackle, appurtenances and cargo located within
center point coordinates, In Rem,

                                         5
                                                   Defendant,

DR. JAIME DURAND PALACIOS,

                                                   Claimant-Appellant,

KINGDOM OF SPAIN,

                                                   Claimant-Appellee.

                          ________________________

                                No. 10-10375
                          ________________________

                   D. C. Docket No. 8:07-cv-00614-SDM-MAP

ODYSSEY MARINE EXPLORATION, INC.,

                                                   Plaintiff,

                                      versus

THE UNIDENTIFIED SHIPWRECKED VESSEL,
its apparel, tackle, appurtenances and cargo located within
center point coordinates, In Rem,

                                                   Defendant,

JOSE ANTONIO RODRIGUEZ-MENENDEZ,
a.k.a. Joseph Anthony Rodriguez,

                                                   Claimant-Appellant,

KINGDOM OF SPAIN,

                                                   Claimant-Appellee.

                                         6
                               ________________________

                      Appeals from the United States District Court
                           for the Middle District of Florida
                            _________________________

                                    (September 21, 2011)

Before HULL, BLACK and STAPLETON,* Circuit Judges.

BLACK, Circuit Judge:

       In 2007, Odyssey Marine Exploration, Inc. (Odyssey) discovered the

remains of a 19th Century Spanish vessel in international waters west of the Straits

of Gibraltar. Odyssey filed a verified admiralty complaint in rem against the

shipwrecked vessel and its cargo in the Middle District of Florida and also sought

a warrant of arrest. The Kingdom of Spain (Spain), the Republic of Peru (Peru),

and twenty-five individuals filed claims against the res. Upon receiving additional

information about the vessel’s identity, Spain also filed a motion to dismiss. Spain

argued, without waiving its sovereign immunity, that the res was a Spanish

warship and the district court thus lacked subject matter jurisdiction over

Odyssey’s claims because the vessel was immune from judicial arrest under the

Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. The district



       *
        Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit, sitting
by designation.

                                                7
court granted Spain’s motion to dismiss, concluding the res was the shipwreck of a

sunken Spanish warship and was entitled to sovereign immunity. Having

determined that the res is “immune from . . . arrest” in United States courts, we

affirm. 28 U.S.C. § 1609.

                                I. BACKGROUND

      Odyssey is a deep-ocean exploration and shipwreck recovery business. In

2006, Odyssey began what it called the Amsterdam Project, researching ships that

sank in a heavily-traveled area, which included an area off the coast of Gibraltar.

Odyssey developed a list of target vessels to search for, one of which was the

Nuestra Senora de las Mercedes (Mercedes), a Spanish vessel that sank in 1804.

According to Odyssey, it “recogniz[ed] that Spain may have had a cultural (if not

legal) interest in vessels that may be located within the Amsterdam area, [and]

invited Spain to participate in the project.” Odyssey’s Resp. to Spain’s Motion to

Dismiss, Dkt. 138 at 3. Odyssey’s CEO and counsel then met with a

representative from Spain’s Ministry of Culture. What occurred at the meeting is

disputed, but both Odyssey and Spain agree Spain did not give Odyssey approval

to salvage any sunken Spanish vessels.

      In March 2007, while Odyssey was surveying the Amsterdam area,

Odyssey discovered a shipwreck in international waters 100 miles west of the

                                          8
Straits of Gibraltar at a depth of 1,100 meters. The remains of the shipwrecked

vessel were spread over the seabed in an area 368 meters long and 110 meters

wide. Odyssey conducted a detailed survey of the shipwreck before disturbing any

artifacts on the ocean floor and then began to recover objects from the site.

Odyssey ultimately recovered approximately 594,000 coins and a number of other

small artifacts.

       On April 9, 2007, Odyssey filed a verified complaint against “The

Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo” in

the Middle District of Florida. The complaint listed a possessory and ownership

claim pursuant to the law of finds (Count One), as well as a salvage award claim

pursuant to the law of salvage (Count Two).1 It also noted Odyssey’s intent to

deposit with the court for symbolic arrest in rem a small bronze block recovered

from the shipwreck.

       On April 11, Odyssey filed a motion for an order directing the clerk to issue

a warrant of arrest in rem against the shipwrecked vessel, its apparel, tackle,

appurtenances, and cargo. Odyssey explained its intent to continue to recover

artifacts from the site, and the motion provided that all artifacts and objects


       1
          The complaint also sought a declaratory judgment that no government had the authority
to interfere with Odyssey’s exploration or recovery of the vessel. This claim is not before us on
appeal.

                                                9
recovered would be turned over to the U.S. Marshal or to a substitute custodian

appointed by the court for symbolic arrest in rem. Upon order of the magistrate

judge, the clerk issued a Warrant of Arrest In Rem against the shipwrecked vessel

and its apparel, tackle, appurtenances, and cargo. The warrant commanded the

U.S. Marshal to take possession of the bronze block and any future artifacts

recovered from the shipwrecked vessel. The court then issued an order appointing

Odyssey as substitute custodian of the shipwrecked vessel and any recovered

artifacts “until further order of this Court.”2 Ord. Appointing Substitute Custodian

at 2.

        After Odyssey published a notice of arrest, Spain filed a verified claim to

the vessel and its contents and cargo. On June 19, 2007, Spain filed a motion for a

more definite statement and for disclosure of other information identifying the

vessel and its contents. In the alternative, Spain sought an order dismissing the

complaint, vacating the arrest, and terminating Odyssey’s appointment as

substitute custodian. Spain claimed Odyssey had not complied with the

heightened pleading requirements for in rem complaints in admiralty, see Fed. R.

Civ. P., Adm. Supp. R. C(2)(b), and had failed to provide information indicating


        2
         The district court found Odyssey was “duly qualified to serve as the Substitute Custodian
of artifact recovered from the Defendant Shipwrecked Vessel” and had “agreed to assume the
responsibility of safekeeping the salvaged artifacts.” Ord. Appointing Substitute Custodian at 2.

                                               10
the origin or nationality of the vessel and whether the vessel was a military ship or

other sovereign property of a foreign nation. Spain stated that such information

was relevant to the court’s subject matter jurisdiction, as the property of a

sovereign nation would be immune from arrest under the FSIA. In addition, Spain

argued the details provided in the complaint were insufficient to allow Spain to

determine whether to invoke sovereign immunity of the res from arrest.

       Odyssey responded by filing an amended complaint on August 6, 2007. It

included the same in rem possessory and salvage claims as Odyssey’s original

complaint (Counts One and Two).3 The amended complaint also stated Odyssey

would present its Preliminary Site Assessment to the court under seal, and

Odyssey would release information from the assessment to Spain as directed by

the court. Odyssey claimed, however, it had “found no evidence which would

confirm the identity of a ship or an interest of Spain or any other third party in this

particular site.” Amended Compl., Dkt. 21 at 6.

       On September 19, 2007, Spain filed a motion to dismiss Odyssey’s amended

complaint, claiming Odyssey’s in rem claims once again failed to meet the



       3
          Odyssey’s amended complaint also raised in personam claims against Spain that did not
appear in the original complaint. These in personam claims, as well as Odyssey’s declaratory
judgment claim raised in both the original and amended complaints, were later dismissed by the
district court and are not at issue in this appeal.

                                              11
pleading requirements for admiralty actions in rem. Spain also asked the court to

vacate the arrest and terminate Odyssey’s appointment as substitute custodian.

Although the district court ultimately denied this motion, it directed Odyssey to

disclose certain information relating to the vessel’s possible identity. In response

to interrogatories from the court, Odyssey stated there was no confirmation the site

represented any specific vessel, but disclosed it was considering the possibility the

site was related to the Spanish vessel, the “Nuestra Senora de las Mercedes y las

Animas.”

      Upon this disclosure, Spain claimed the Mercedes was a Spanish Royal

Navy Frigate that exploded and sank in combat in 1804 and was therefore subject

to sovereign immunity from all claims or arrest in the United States pursuant to the

FSIA. Spain accordingly filed a motion to dismiss for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, to grant

summary judgment in Spain’s favor pursuant to Fed. R. Civ. P. 56(a). Spain

claimed it was “indisputable” the res was the Mercedes, “a warship of the Royal

Navy of Spain which is subject to immunity from Odyssey’s claims in this Court

and is not subject to salvage against the wishes of Spain.” Spain’s Mot. to Dismiss

or for Summary Judgment, Dkt. 131 at 1-2. Spain requested the Court dismiss the

claims against the res, vacate the arrest, withdraw Odyssey’s designation as

                                          12
substitute custodian, and direct that the artifacts in Odyssey’s custody be turned

over to the custody of Spain. Odyssey responded there was insufficient evidence

to determine the res was the Mercedes, the FSIA was not a jurisdictional bar in

this case, and sovereign immunity would not bar Odyssey’s salvage claim. In

addition, Odyssey argued that if, as Spain contested, the court did not have

jurisdiction over the res, the court was without power to order the artifacts turned

over to Spain.

      The possible identification of the vessel as the Mercedes brought forward a

number of additional claimants. Twenty-five claimants filed claims, arguing they

had an interest in the cargo aboard the vessel. Twenty-four of the individuals

alleged they were descendants of individuals with cargo aboard the Mercedes, and

one individual claimed an ancestral interest in any of Spain’s treasure in Florida.

In addition, Peru filed a claim contending it had sovereign rights to property

aboard the Mercedes that originated in its territory or was produced by its people.

      On June 3, 2009, the magistrate judge issued a Report and Recommendation

finding the res was the Mercedes and was the property of Spain. The magistrate

judge concluded that under the FSIA the court was without jurisdiction to

adjudicate the in rem salvage and possessory claims against the Mercedes and its




                                         13
cargo. The magistrate judge recommended the district judge grant Spain’s motion

to dismiss and direct Odyssey, as substitute custodian, to return the res to Spain.

      Odyssey, Peru, and the descendant claimants objected to the magistrate

judge’s report. The United States filed a Statement of Interest as Amicus Curiae in

Support of the Kingdom of Spain. It argued the United States had a treaty

obligation to afford sunken Spanish warships the same protections and immunities

from implied abandonment and uncontested access and salvage as a sunken United

States warship would receive in United States courts.

      The district court adopted the magistrate judge’s report and recommendation

in full on December 22, 2009. The district court dismissed Odyssey’s amended

complaint for lack of subject matter jurisdiction, vacated the in rem arrest, and

ordered Odyssey to return the res to Spain. The order to return the res was stayed

pending this appeal.

      On appeal, Odyssey, Peru, and the twenty-five individual claimants contend

the district court erred by: (1) failing to use a Rule 56 summary judgment standard

when analyzing Spain’s Rule 12(b)(1) motion to dismiss; (2) failing to conduct an

oral evidentiary hearing before ruling on the motion to dismiss; (3) finding the res

is the Spanish warship the Mercedes and holding the FSIA grants it sovereign




                                         14
immunity; (4) failing to distinguish between the Mercedes and the private cargo

aboard; and (5) ordering the recovered res returned to Spain’s custody.

                          II. STANDARD OF REVIEW

       When evaluating a district court’s conclusions on a Rule 12(b)(1) motion,

“[w]e review the district court’s legal conclusions de novo and its factual findings

for clear error.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,

1279 (11th Cir. 2009); see also Lawrence v. Dunbar, 919 F.2d 1525, 1530 (11th

Cir. 1990) (“The usual standard of reviewing a district court’s findings of

jurisdictional facts is the clearly erroneous standard.”). “As we have repeatedly

held, the ‘clearly erroneous’ standard is highly deferential.” Carmichael, 572 F.3d

at 1280. We must affirm the district court’s determination “so long as it is

plausible in light of the record viewed in its entirety.” Merrill Stevens Dry Dock

Co. v. M/V YEOCOMICO II, 329 F.3d 809, 816 (11th Cir. 2003) (quotation marks

omitted); see also Univ. of Ga. Athletic Ass'n v. Laite, 756 F.2d 1535, 1543 (11th

Cir. 1985) (“While the ‘clearly erroneous’ standard of review is less stringent than

the well-known sports rule, ‘The referee is always right,’ it nevertheless presents a

formidable challenge to appellants who . . . seek to overturn the factual findings of

a district court.”).



                                         15
      We review a district court’s decision not to hold an evidentiary hearing for

an abuse of discretion. See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 171-

72 (5th Cir. 1994) (reviewing a district court’s failure to conduct an evidentiary

hearing on a party’s Rule 12(b)(1) motion for lack of subject matter jurisdiction

under the FSIA for an abuse of discretion).

                                 III. DISCUSSION

A.    Did the district court apply the correct standard in evaluating Spain’s
      motion to dismiss?

      The district court evaluated Spain’s Fed. R. Civ. P. 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction under the standard applied to Rule

12(b)(1) motions asserted on factual grounds. This Court has explained that when

a party raises a factual attack to subject matter jurisdiction–as opposed to a facial

challenge based merely on the allegations in the complaint–the district court is not

obligated to take the allegations in the complaint as true. Carmichael, 572 F.3d at

1279. Instead, the “court may consider extrinsic evidence such as deposition

testimony and affidavits.” It may independently weigh the facts and is not

constrained to view them in the light most favorable to the non-movant. Id.

Applying this standard, the district court weighed the facts and determined that the

res was a sunken Spanish warship over which it lacked jurisdiction. As we


                                          16
explain in Part III. C. 1, we conclude the district court did not clearly err in its

factual determinations.

      Odyssey argues the district court should not have independently weighed

the facts under the Rule 12(b)(1) standard, but instead should have evaluated the

facts under the standard applied to a motion for summary judgment under Fed. R.

Civ. P. 56. Under this standard, Odyssey asserts, the court should have viewed the

evidence in the light most favorable to Odyssey and drawn all justifiable

inferences in its favor. Odyssey argues the Rule 56 standard is necessary because

a motion to dismiss implicates the merits of the underlying claim in the case.

      This Court has explained “[w]hen the jurisdictional basis of a claim is

intertwined with the merits [of the claim], the district court should apply a Rule 56

summary judgment standard when ruling on a motion to dismiss which asserts a

factual attack on subject matter jurisdiction.” Dunbar, 919 F.2d at 1530.

“[J]urisdiction becomes intertwined with the merits of a cause of action when a

statute provides the basis for both the subject matter jurisdiction of the federal

court and the plaintiff’s substantive claim for relief.” Morris v. Amway Corp., 323

F.3d 920, 926 (11th Cir. 2003) (citation and quotations omitted).




                                           17
      In this case, jurisdiction is not intertwined with the merits of the cause of

action. Although the FSIA governs the subject matter jurisdiction of the federal

courts to hear this case, Odyssey has two substantive claims for relief: an in rem

salvage claim, which is governed by salvage law; and an alternate claim of

possessory rights and ownership under the law of finds. Since the FSIA provides

only subject matter jurisdiction, and is not the basis for Odyssey’s substantive

claims, the same statute does not provide the basis for both the subject matter

jurisdiction of the court and the plaintiff’s substantive claims for relief such that

jurisdiction is intertwined with the merits of the claim. Although Odyssey

contends the motion to dismiss implicates the merits of the underlying claim, that

a lack of subject matter jurisdiction bars a party’s claim does not mean the

jurisdictional question is itself related to the cause of action. See Moran, 27 F.3d

at 172-73. Accordingly, the district court correctly applied the Rule 12(b)(1)

standard for factual challenges to jurisdiction to Spain’s motion for dismiss.

B.    Should the district court have held an evidentiary hearing when ruling on
      Spain’s Rule 12(b)(1) motion?


      Odyssey contends the district court erred by failing to conduct an

evidentiary hearing when deciding the Rule 12(b)(1) motion. Odyssey claims it

should have been given an opportunity to orally cross examine Spain’s experts.

                                          18
      “When a party challenges subject matter jurisdiction, the court is given the

authority to resolve factual disputes, along with the discretion to devise a method

for making a determination with regard to the jurisdictional issue.” Id. at 172; see

also Land v. Dollar, 330 U.S. 731, 735, 67 S. Ct. 1009, 1011 n. 4 (1947) (“As

there is no statutory direction for procedure upon an issue of jurisdiction, the mode

of its determination is left to the trial court.”(quotation marks and citation

omitted)). When resolving factual disputes underlying a Rule 12(b)(1) motion, a

court “‘may’ consider oral evidence along with written, but an evidentiary hearing

is not required.” Moran, 27 F.3d at 173.

      Both the magistrate judge and the district court had before them what the

district court referred to as “an encyclopedic treatment of the issues attendant to

this controversy.” Spain’s motion to dismiss, Odyssey’s response and Spain’s

reply were accompanied by a combined total of 125 attachments, including

affidavits of multiple historians, counter-affidavits, copies of original Spanish

documents from the Nineteenth Century with translations, photographs from the

shipwreck site, and photographs of the artifacts recovered. Further, Odyssey

introduced even more exhibits with its objections to the magistrate judge’s report,

including copies of original historical documents, translated documents, articles,



                                          19
and excerpts from histories. Each party had a full opportunity to present evidence,

including the ability to present counter-affidavits. The district court did not abuse

its discretion by evaluating Spain’s Rule 12(b)(1) motion based on the extensive

record before it.4

C.     Did the district court have subject matter jurisdiction over the res?

       The Constitution empowers the federal courts to hear “all Cases of

admiralty and maritime Jurisdiction.” U.S. Const. art. III § 2, cl. 1. “‘An in rem

suit against a vessel is . . . distinctively an admiralty proceeding, and is hence

within the exclusive province of the federal courts.’” Bd. of Comm’rs of the

Orleans Levee Dist. v. M/V Belle of Orleans, 535 F.3d 1299, 1314 (11th Cir. 2008)

(quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 446-47, 114 S. Ct. 981, 985

(1994)).

       Although federal courts have the exclusive power to adjudicate in rem suits

against a vessel, that power is dependent on the court’s jurisdiction over the res,

the property named as the defendant. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943,



       4
          Odyssey claims that Chalwest (Holdings) Ltd. v. Ellis, 924 F.2d 1011, 1014 (11th Cir.
1991), requires the district court to conduct an evidentiary hearing. The Court in Chalwest held
“in a motion to dismiss for want of jurisdiction decided without an evidentiary hearing, the
plaintiff must only present a prima facie case of jurisdiction to defeat the motion where it is the
defendant’s domicile that is at issue.” Id. at 1013. No party’s domicile is at issue here.

                                                 20
964 (4th Cir. 1999) (citing Pennoyer v. Neff, 95 U.S. 714, 724 (1877), overruled in

part by Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569 (1977)). “Only if the

court has exclusive custody and control over the property does it have jurisdiction

over the property so as to be able to adjudicate rights in it that are binding against

the world.” Haver, 171 F.3d at 964. Therefore, when a party files an in rem

complaint, the court issues a warrant for the arrest of the res and the res remains in

the court’s custody for the remainder of the proceedings. Crimson Yachts v. Betty

Lyn II Motor Yacht, 603 F.3d 864, 868 (11th Cir. 2010); see also United States v.

$38,570 U.S. Currency, 950 F.2d 1108, 1113 (5th Cir. 1993) (“No in rem suit can

be maintained without a valid arrest of the res by the marshal.”)

      If the res at issue is the property of a foreign state, the federal courts only

have jurisdiction to arrest the res if authorized by the FSIA. See 28 U.S.C § 1609;

see also Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, 1324 (11th Cir.

2003) (“Federal courts have jurisdiction to hear claims against foreign

governments only if authorized by the Foreign Sovereign Immunities Act.”).

Therefore, in order to determine if we have jurisdiction in this in rem action, we

must determine first whether the res at issue is the property of a foreign state, and




                                          21
second, if it is, whether the federal courts have jurisdiction over the res under the

FSIA.

        1.         Is the res the shipwreck of the Mercedes?

        Odyssey argues there was insufficient evidence for the district court to

conclude the res was the Mercedes. After an extensive review of the record, we

conclude the evidence before the district court supports its factual determination

that the res is the shipwreck of the Mercedes for the purposes of sovereign

immunity.

                   a.      The Mercedes and its historical context

        To determine whether the res is the Mercedes for the purposes of sovereign

immunity, it is necessary to first understand the history of the Mercedes and the

facts surrounding its final mission.5 The facts surrounding the demise of the

Mercedes are best understood in light of the geopolitical context of early 19th

Century Spain.

        Spain and Great Britain fought as allies against revolutionary France in the

War of Convention from 1793 to 1795. In 1795, Spain signed the Peace of Basel

with France, ending the hostilities between Spain and France. While they were

        5
            All of the following facts are in the record before the district court.

                                                     22
technically at peace, Spain still feared French expansionism and France’s stronger

military and quickly entered into the Treaty of San Ildefonso with France on

August 18, 1796. Under the treaty, Spain pledged support to France and became

allied with France in its war against Great Britain. In 1800, Spain signed a second

Treaty of San Ildefonso, reaffirming Spain’s alliance with France. The second

treaty also included significant Spanish concessions to France, including the

cession of Louisiana by Spain to France. In March of 1802, France and Great

Britain signed the Treaty of Amiens, which effected a short-lived peace between

France and Great Britain, but did not abrogate Spain’s alliance with France.

      In 1803, Spain entered into a secret agreement with France where Spain

agreed to pay France a large monthly sum equivalent to and in lieu of its military

obligation to France under the Treaty of San Ildefonso. Spain hoped this

agreement would allow it to maintain its alliance with France without provoking

the British, thereby staving off a potential French invasion of Spain. However,

Great Britain informed Spain it considered the financial support of France as

grounds for attacking Spain.

      In light of its extensive monetary obligations to France and the tenuous

peace with Great Britain, Spain needed to marshal its funds and resources in



                                         23
peninsular Spain. Spain thus utilized the peace from the Treaty of Amiens as an

opportunity to collect funds from its various Viceroyalties. The Spanish

Generalisimo of sea and land forces, Manuel Godoy, ordered warships be

dispatched to the port of El Callao in Lima, part of the Spanish Viceroyalty of

Peru, to collect and bring back to peninsular Spain specie6 and other precious

cargo. Following the Generalisimo’s orders, the Spanish Minister of the Navy

dispatched two frigates of war to Lima, the Mercedes and the Clara.

       The Mercedes was built by Spanish Navy engineers in 1788 at the Spanish

Navy shipyard in Havana, Cuba. It had a distinguished naval career and took part

in multiple military missions, including fighting against the British in both the

Battle of the Cape of Saint Vincent in 1797 and in the defense of El Ferrol, Spain

in 1800. It also conducted multiple missions transporting valuable Spanish effects,

including transporting 500,000 pesos fuertes of the King and other valuables of

Spanish citizens from the Spanish Viceroyalties of New Grenada and New Spain to

peninsular Spain in 1798.




       6
         “Specie” is defined as “[c]oin of the precious metals, of a certain weight and fineness,
and bearing the stamp of the government, denoting its value as currency. Metallic money; e.g.
gold or silver coins.” Black’s Law Dictionary 1398 (6th ed. 1990).

                                                 24
      The Mercedes and the Clara set sail for Lima on February 27, 1803, from the

Spanish naval base in El Ferrol. After stopping for repairs at the Spanish naval

base in Montevideo, in present day Uruguay, the Mercedes reached Lima on

August 7, 1803.

      In Lima, the Mercedes took on board an extensive amount of specie and

other cargo, including copper and tin ingots of the Royal Treasury, products of the

Royal Revenue of Mails, proceeds of patriotic loans, ecclesiastic funds, military

payroll and tree husks. It also took aboard specie of Spanish citizens. According

to Spanish naval historians, it was an accepted practice at this time for a country to

provide military transport for private property when the transport would pass

through areas patrolled by hostile nations’ warships. In all, the Mercedes was

loaded with approximately 900,000 silver pesos, 5,809 gold pesos, and almost

2000 copper and tin ingots. The Mercedes was also loaded with two obsolete

bronze cannons, commonly called culverins. The culverins were being returned to

Spain for reuse of the bronze for other military purposes.

      Shortly after the Mercedes arrived in Lima, the Viceroy of Peru was

informed the Treaty of Amiens had been abrogated and France and Great Britain

were once again at war. In light of the resumed hostilities between France and


                                          25
Great Britain, the Mercedes’ departure from Lima was delayed. The Mercedes

ultimately left Lima on March 31, 1804, along with the Clara and another Spanish

Navy frigate, the Asuncion. The three ships stopped in Montevideo on June 5,

1804. There, the Clara and the Mercedes were placed under the command of

Royal Navy Commander General Jose de Bustamente y Guerra and joined a

squadron of two other Spanish Navy frigates, the Medea and the Fama. The

squadron thereafter consisted of four frigates: the Mercedes, the Clara, the Medea,

and the Fama.

       According to the official registry of the Mercedes, when it arrived at

Montevideo its crew of 337 included eight Spanish naval officers, 63 marines, 69

artillerymen and gunners, 51 sailors, 103 sailors-in-training, and various other men

performing different jobs aboard the ship. It was also armed according to Spanish

Navy regulations for war frigates and carried 12-pounder and 6-pounder cannons,

as well as 24-pounder and 3-pounder obuses or pedreros.7

       The day before the squadron left Montevideo, the second in command of the

squadron fell ill and had to be replaced. Captain Diego de Alvear, who was aboard



       7
        The exact number of cannons the Mercedes carried is disputed. Spain and one of
Odyssey’s experts claims the Mercedes carried 50 cannons, while another one of Odyssey’s
experts claims it carried only 33-40 cannons.

                                              26
the Mercedes and was returning to Spain with his family, was moved from the

Mercedes to the Medea to replace the second in command. Captain Alvear’s

family, including his wife, four daughters, three sons, and one nephew, stayed

aboard the Mercedes.

      The squadron set sail from Montevideo for Cadiz on August 9, 1804. On the

morning of October 5, 1804, when the Spanish squadron was only one day’s sail

from Cadiz, it was intercepted by a British squadron. Four Royal British Navy

ships, under the command of Commodore Graham Moore, had been sent by the

British Navy Admiralty to intercept Spanish warships transporting treasure back to

Spain. The Spanish frigates, having sighted the British frigates headed towards

them, assumed a combat formation. A British officer was sent aboard the Medea

and informed the Spanish that the British King had ordered the British Navy to

detain the Spanish squadron and take it to England. The Spanish refused the British

order, and what was to become known as the Battle of Cape Saint Mary soon

commenced.

      Only a few minutes after the battle began, the Mercedes exploded. Captain

Alvear, whose family was aboard the Mercedes, later wrote “The Mercedes jumped

through the air making a horrible racket, covering us [on the Medea] with a thick


                                        27
rain of debris and smoke.” Except for fifty sailors, everyone aboard the Mercedes

was killed, including Captain Alvear’s entire family. The remaining three Spanish

frigates surrendered and were taken by the British squadron to England. Partly as a

consequence of the Battle of Cape Saint Mary, Spain declared war against Great

Britain and entered into the Napoleonic Wars as an ally of France.

             b.     The res is the Mercedes

      In this historical context, the entirety of the record evidence supports the

district court’s conclusion that the res is the Mercedes. The res was found within

the zone Spain had plotted as the likeliest area of the Mercedes’ demise, and no

other naval vessels matching the Mercedes’ type sank within that zone during the

same time period. The site, essentially a scattered debris field, is consistent with a

vessel that exploded at the surface. Moreover, the composition of the examined

sampling of coins found on the res matches that of the 900,000 mostly silver coins

aboard the Mercedes: almost all the coins are silver; they were all minted in the late

18th and early 19th Centuries and none were minted later than 1804; and they were

almost exclusively minted in Lima and Bolivia. The 17 cannons found at the site,

consisting of 6- and 12-pounder cannons, match the type the Mercedes would have

carried. The site contains at least one bronze culverin, matching the distinctive


                                          28
cannons the Mercedes was carrying to be recycled. The site also includes large

quantities of copper and tin ingots, matching the large quantity carried by the

Mercedes, and contains copper plates like those used to sheath the hull of the

Mercedes.

      Despite this evidence, Odyssey contends the artifacts recovered do not match

the cargo of the Mercedes. It points out that the Mercedes was carrying 900,000

coins and 33-50 cannons, whereas Odyssey has only recovered 595,000 coins and

seventeen cannons. We find this argument unconvincing. The failure to fully

recover all artifacts carried by the Mercedes is understandable considering the

Mercedes exploded at the surface, sank 1,100 meters, scattered over a large area,

and has been sitting on the ocean floor for more than 200 years.

      Odyssey also argues the res cannot be the Mercedes because Odyssey did not

find an intact vessel. Although it is undisputed the shipwreck site does not contain

an “intact” vessel, this fact is not determinative. As one of Odyssey’s own experts

acknowledged, the site is consistent with a vessel that broke up at the surface and

descended through the water. There is evidence of an actual vessel at the site,

including copper plates like those used to sheath a hull. The site and thus the res is

a shipwreck, even though no intact vessel was found.


                                          29
       Furthermore, Odyssey acknowledged when it found the shipwreck that it was

the remains of a vessel. Odyssey filed both its original complaint against and a

motion seeking the arrest of “The Unidentified Shipwrecked Vessel, its apparel,

tackle, appurtenances and cargo.” The district court, at Odyssey’s request, issued a

warrant for the arrest of “The Unidentified Shipwrecked Vessel, its apparel, tackle,

appurtenances and cargo.” Therefore, the evidence in the record fully supports the

finding of the district court that the res is the Mercedes for the purposes of

sovereign immunity.8

       2.      Does the FSIA apply to the Mercedes?

       As we previously noted, in order for the federal courts to have jurisdiction

over this in rem action, we must first determine whether the res at issue is the


       8
         The fact that the Mercedes has been sitting on the ocean floor for over 200 years does not
negate Spain’s property interest in the shipwreck. Under the 1902 Treaty of Friendship and
General Relations between the United States of America and Spain, shipwrecked “Spanish
vessels, like those belonging to the United States, may only be abandoned by express acts.” Sea
Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634, 638, 642 (4th Cir.
2000); see also Sunken Military Craft Act, Pub. L. No. 108-375, § 1406, 118 Stat. 1811, 2097
(2004) (“The law of finds shall not apply to . . . any foreign sunken military craft located in
United States waters,” and “[n]o salvage rights or awards shall be granted with respect to . . . any
foreign sunken military craft located in United States waters without the express permission of
the relevant foreign state.”); Protection of Sunken Warships, Military Aircraft and Other Sunken
Government Property, 69 Fed. Reg. 5647-01, 5648 (Feb. 5, 2004) (President Clinton’s January
19, 2001, statement that the United States “recognizes that title to a United States or foreign
sunken State craft, wherever located, is not extinguished by passage of time, regardless of when
such sunken State craft was lost at sea”). The shipwreck of the Mercedes is thus unquestionably
the property of Spain.

                                                 30
property of a foreign state, and second, if it is, whether the federal courts have

jurisdiction over it under the FSIA. The district court did not err in determining the

res is the Mercedes. It is uncontested the Mercedes is the property of Spain. We

must now determine if the district court correctly decided that FSIA immunity

applies to the arrest of the Mercedes.

             a.     Section 1609 provides the Mercedes with presumptive
                    immunity from arrest


      Section 1609 of the FSIA states: “Subject to existing international

agreements to which the United States is a party at the time of enactment of this

Act the property in the United States of a foreign state shall be immune from

attachment[,] arrest[,] and execution except as provided in sections 1610 and 1611

of this chapter.” 28 U.S.C. § 1609. The Mercedes is Spain’s sovereign property

that is within the United States. While the Mercedes itself is not within the United

States, that alone does not defeat the court’s ability to obtain jurisdiction over it. A

court may have either actual or constructive possession over the res. See The Brig

Ann, 13 U.S. 289, 291 (1815). A court can exercise constructive possession over a

shipwreck when part of the shipwreck is presented to the district court. See, e.g.,

California v. Deep Sea Research, Inc., 523 U.S. 491, 494, 118 S. Ct. 1464, 1467

(1998). A salvor is thus able to bring a shipwreck found in international waters

                                           31
constructively within a court’s territorial jurisdiction by having a portion of the

shipwreck within the jurisdiction. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943,

967-69 (4th Cir. 1999) (concluding a shipwreck found in international waters can

“constructively” be considered within the jurisdiction of the district court, although

the district court’s sovereignty over the wreck is a “‘shared sovereignty,’ shared

with other nations enforcing the same [law of all nations]”). Odyssey has deposited

parts of the Mercedes with the district court, constructively bringing the shipwreck

within the court’s territorial jurisdiction. Because this is an in rem action based on

the arrest of sovereign property, § 1609 provides the Mercedes with presumptive

immunity from arrest.

             b.     The Mercedes does not fall within any of the FSIA exceptions
                    to in rem immunity


      Because § 1609 provides the Mercedes with presumptive immunity from

arrest on these facts, the only way a federal court can obtain jurisdiction is if an

exception to § 1609 applies. Odyssey has the burden of overcoming the

presumption that the Mercedes is immune from arrest. See S & Davis Int’l, Inc. v.

The Republic of Yemen, 218 F.3d 1292, 1300 (11th Cir. 2000) (“To establish

subject matter jurisdiction under the FSIA, a plaintiff must overcome the

presumption that the foreign state is immune from suit in the United States’ courts.

                                           32
. . . In order to overcome the presumption of immunity, a plaintiff must prove that

the conduct which forms the basis of its complaint falls within one of the statutorily

defined exceptions.”) (citing Republic of Argentina v. Weltover, Inc., 504 U.S. 607,

610-11, 112 S. Ct. 2160 (1992)). If Odyssey offers evidence one of the FSIA

exceptions to immunity applies, the burden shifts to Spain to show, by a

preponderance of the evidence, that the exception does not apply. Id.

      Although §§ 1610 and 1611 are the only statutory exceptions to a sovereign

property’s immunity from arrest, see § 1609, Odyssey fails to invoke either of these

exceptions. Because Odyssey has failed to satisfy its burden by proving that either

§ 1610 or § 1611 applies, we would normally end the analysis at this point.

Odyssey, however, argues the Mercedes was engaged in commercial activity and is

exempt from any FSIA protection by virtue of the FSIA’s incorporation of existing

international agreements that exempt commercial vessels from sovereign immunity.

See U.S.C. § 1609 (explaining that immunity from arrest is “[s]ubject to existing

international agreements which the United States is a party at the time of

enactment.”). Specifically, Odyssey points to language in the 1958 Geneva

Convention on the High Seas stating, “Ships owned or operated by a state and used

only on government non-commercial service shall, on the high seas, have complete



                                         33
immunity from the jurisdiction of any State other than the flag State.” Art. 9,

entered into force Sept. 30, 1962, 13 U.S.T. 2312, 450 U.N.T.S. 11.9 On its face,

this language creates an affirmative grant of immunity to vessels engaged in “non-

commercial service.” It does not, as Odyssey contends, appear to create a

commercial activity exception to § 1609's immunity to arrest. However, even if it

did, this argument fails because the Mercedes was not engaged in commercial

activity.10

       The FSIA defines a “commercial activity” as: “[e]ither a regular course of

commercial conduct or a particular commercial transaction or act. The commercial

character of an activity shall be determined by reference to the nature of the course

of conduct or particular transaction or act, rather than by reference to its purpose.”

28 U.S.C. § 1603(d).11 The Supreme Court acknowledged in Weltover that this



       9
        Odyssey also cites to the 1926 Brussels Convention for the Unification of Certain Rules
Relating to the Immunity of State-Owned Vessels, entered into force Jan. 8, 1937, 176, L.N.T.S.
199. However, as the United States has not ratified this Convention and was not a party to it at
the time the FSIA was enacted, it would not apply under the terms of the FSIA. See 6B Benedict
on Admiralty § 8-41 (Frank L. Wiswall, Jr. ed., 7th ed. 2011).
       10
         Odyssey did not raise a commercial activity argument under § 1610, which provides for
exceptions from attachment for property “used for a commercial activity in the United States,”
and would thus not apply. See 28 U.S.C. § 1610. Instead, Odyssey improperly invoked
§ 1605(b)’s commercial activity exception, which as we explain in Part III. C. 2. c., also does not
apply.
       11
            The 1958 Geneva Convention on the High Seas does not define “commercial.”

                                                34
definition “leaves the critical term ‘commercial’ largely undefined.” 504 U.S. at

612, 112 S. Ct. at 2165. The Supreme Court clarified that an activity is commercial

under the FSIA: “when a foreign government acts, not as regulator of a market, but

in the manner of a private player within it.” Id. at 614, 112 S. Ct. at 2166. It

elaborated:

      [B]ecause the Act provides that the commercial character of an act is
      to be determined by reference to its ‘nature’ rather than its ‘purpose,’
      28 U.S.C. § 1603(d), the question is not whether the foreign
      government is acting with a profit motive or instead with the aim of
      fulfilling uniquely sovereign objectives. Rather, the issue is whether
      the particular actions that the foreign state performs (whatever the
      motive behind them) are the type of actions by which a private party
      engages in ‘trade and traffic or commerce,’ Black’s Law Dictionary
      270 (6th ed. 1990).


Id. In Guevara v. Peru, this Court explained that “[w]e read Weltover to mean that

‘[a] foreign state is commercially engaged when it acts like an ordinary private

person, not like a sovereign, in the market.’” 468 F.3d 1289, 1298 (11th Cir. 2006)

(quoting Hond. Aircraft Registry, Ltd. v. Gov’t of Hond., 129 F.3d 543, 548 (11th

Cir. 1997)).

      Odyssey points to several facts suggesting the Mercedes was serving in a

commercial capacity. Specifically, Odyssey claims the Mercedes was carrying

goods and specie for freight, 75% of the cargo measured by value was privately


                                          35
owned, private merchants were charged a 1% freight rate to ship their goods aboard

the Mercedes, and Spain was not at war when the Mercedes sunk. In addition,

Odyssey argues the Mercedes was serving as a commercial transport vessel for the

Spanish Correos Maritimos (Maritime Mail Service).

      After reviewing the record evidence, we conclude the Mercedes was not

“act[ing] like an ordinary private person” in the marketplace. See id. At the time it

sank, the Mercedes was a Spanish Navy vessel. According to the 1804 official

registry of ships of the Royal Spanish Navy, the Mercedes was assigned to the

Spanish Navy fleet based at El Ferrol as one of nine frigate class ships. It was

under the command of a Spanish Navy captain both when it left El Ferrol and when

it was sunk. It delayed its departure from Lima to comply with Spanish Navy

orders to prepare for war with the British. The crew was made up of Spanish Navy

officers, sailors and marines, its armament was the standard armament of Spanish

warships, and Captain Alvear’s family and servants were traveling with official

authorization. It was also carrying a substantial amount of Spanish Government

specie and cargo, including money at the Minister of the Treasury’s disposal, war

donations, and copper and tin ingots.




                                         36
       Although the Mercedes did transport private cargo of Spanish citizens for a

charge, the transport was of a sovereign nature. According to Spanish naval

historians, providing protection and safe passage to property of Spanish citizens

was a military function of the Spanish Navy, especially in times of war or

threatened war. This function was particularly important during the late 18th and

early 19th Centuries, when ships traveling between Spain and its American

Viceroyalties had to pass through areas patrolled by hostile nations’ warships.

Therefore, the Mercedes was “act[ing] . . . like a sovereign” by transporting specie

during a time of threatened war. Guevara, 468 F.3d at 1298.12

       In support of its position that the Mercedes was engaged in commercial

activity, Odyssey also contends the Mercedes was a part of the Correos Maritimos,

an official entity of the Spanish government dedicated to handling and transporting

mail. The Correos Maritimos generally consisted of small, fast and lightly armed

vessels that sailed to Spain’s overseas Viceroyalties from their home base in La

Coruna, Spain. Spain presented ample evidence the Mercedes was not part of the

Correos Maritimos, including: historical records listing the Mercedes as part of the

       12
          Odyssey argues the Mercedes cannot be a warship because Spain was not at war with
the British when it was sunk. Odyssey has failed to point to any law supporting this argument.
Further, this argument would negate the warship status of many sunken military vessels,
including the U.S.S. Arizona at Pearl Harbor. A country need not be at war for a sunken navy
vessel to be a warship, as countries have navies both during times of war and times of peace.

                                               37
Spanish Navy and a warship; records listing vessels that were part of the Correos

Maritimos, which do not include the Mercedes; and records showing the Mercedes’

orders came from the Minister of the Navy rather than the Minister of State, who

controlled the Correos Maritimos. The district court did not clearly err in

concluding the Mercedes was a warship and not part of the Correos Maritimos.

      Because Spain was acting like a sovereign, not a private person in the

marketplace, we conclude the Mercedes was not conducting commercial activity

and is immune from arrest under the FSIA.

             c.    Section 1605(b) does not apply to the Mercedes

      Odyssey also attempts to circumvent § 1609 by arguing that § 1605(b),

which refers to the immunity of a foreign state from claims when a suit is brought

to enforce a maritime lien, provides this court with jurisdiction. This interpretation

is inconsistent with the plain language of the FSIA.

      The FSIA establishes two broad grants of immunity, which apply to different

types of claims and are subject to different sets of exceptions. Section 1609, which

we have explained applies to Odyssey’s in rem claims, provides the property of a

foreign state with immunity from arrest, attachment, and execution and states that

exceptions are provided in §§ 1610 and 1611. 28 U.S.C. § 1609. In contrast,


                                          38
§ 1604 provides immunity to the foreign state itself and states that exceptions are

provided in §§ 1605 to 1607. 28 U.S.C. § 1604. The structure of the statute and

the clear language of § 1609 and § 1604 thus preclude reading § 1605(b) to control

the in rem arrest in this case. See Mangattu v. M/V IBN HAYYAN, 35 F.3d 205, 209

(5th Cir. 1994) (stating the plain language of § 1609 precludes reading the

language of §§ 1605 and 1606 to control an issue of attachment). Section 1605(b)

is an exception only to the general immunity of the foreign state itself from claims

under § 1604 and thus does not apply to Odyssey’s in rem claims against Spain’s

property. 28 U.S.C. § 1604.

              d. The FSIA does not contain a possession requirement

      Finally, Odyssey posits the Mercedes is not immune from arrest because the

FSIA only applies when sovereign property is in the sovereign’s possession, and

Spain was not in possession of the res. This argument does not rest on any

language in the statute, but on Odyssey’s interpretation of California v. Deep Sea

Research, 523 U.S. 491, 118 S. Ct. 1464 (1998), and Aqua Log, Inc. v. Georgia,

594 F.3d 1330 (11th Cir. 2010), two cases that addressed the sovereign immunity

of a state’s property under the Eleventh Amendment. Odyssey claims these cases




                                         39
establish a sovereign may claim immunity in an in rem admiralty action only when

the sovereign is in possession of the res.

      We note first that neither of these cases contain any holding regarding the

immunity of a foreign sovereign’s property. Rather, these cases concerned state

property and the Eleventh Amendment. See Deep Sea Research, 523 U.S. at494,

507-08, 118 S. Ct. at 1467, 1473 (holding the Eleventh Amendment does not bar

jurisdiction over vessels that are not in the State’s possession and stating the case

“requires us to address the interaction between the Eleventh Amendment and the in

rem admiralty jurisdiction of the Federal Courts”); see also Aqua Log, 594 F.3d at

1335 (holding the Eleventh Amendment does not bar jurisdiction over a case where

Georgia claimed to own logs sunk at the bottom of a river that were not within

Georgia’s actual possession). Regardless of any possession requirement the courts

have imposed on a U.S. state claiming immunity of its property, there is no support

to conclude these cases alter the immunity Congress specifically provided to

property of foreign states under the FSIA.

      Moreover, it is clear we look only to the FSIA to determine if any possession

requirement exists. Subject matter jurisdiction of the “lower federal courts is

determined by Congress in the exact degrees and character to which Congress may


                                             40
seem proper for the public good.” Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 433, 109 S. Ct. 683, 688 (1989) (quotation marks omitted).

Congress has mandated “[c]laims of foreign states to immunity should [] be

decided by courts . . . in conformity with the principles set forth in [the FSIA].” 28

U.S.C. § 1602. The Supreme Court has made clear the FSIA “provides the sole

basis for obtaining jurisdiction over a foreign state.” Amerada Hess Shipping

Corp., 488 U.S. at 443, 109 S. Ct. at 693 (emphasis added); see also Verlinden B.V.

v. Cent. Bank of Nigeria, 461 U.S. 480, 497-98, 103 S. Ct. 1962, 1973 (1983)

(stating “deciding whether statutory subject matter jurisdiction exists under the

Foreign Sovereign Immunities Act entails an application of the substantive terms of

the Act to determine whether one of the specified exceptions to immunity applies”)

(emphasis added).

       An examination of the FSIA reveals no possession requirement exists in any

part of the statute.13 When Congress determined “the exact degree[] and character”

of subject matter jurisdiction over the property of foreign sovereigns under the

FSIA, it did not provide an exception to immunity for property not in a foreign

       13
         Odyssey asserts the FSIA contains a possession requirement in § 1605(b). As we have
previously stated, § 1605 does not apply because it is an exception to the sovereign immunity of
a foreign state provided by § 1604, whereas immunity here is granted under § 1609. See 28
U.S.C. § 1604. Regardless, an examination of § 1605(b) shows it does not impose a possession
requirement.

                                                41
sovereign’s possession. Amerada Hess Shipping Corp., 488 U.S. at 433, 109 S. Ct.

at 688.

      Finally, Odyssey, as well as Peru, cites to Compania Espanola de

Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68, 58 S. Ct. 432 (1938), as

holding a foreign government cannot claim sovereign immunity over a vessel not in

its possession.14 The Navemar was decided before the FSIA was enacted. Even if

cases prior to the enactment of the FSIA imposed a possession requirement, the

FSIA preempts any prior possession requirement. See Amerada Hess Shipping

Corp., 488 U.S. at 443, 109 S. Ct. at 693 (stating the FSIA “provides the sole basis

for obtaining jurisdiction over a foreign state”) (emphasis added); see also H.R.

Rep. 94-1487, at 12 (1976) (noting the FSIA “is intended to preempt any other

State or Federal law (excluding applicable international agreements)”). We hold

FSIA immunity applies regardless of whether the property of a foreign sovereign is

in that sovereign’s possession at the time of arrest.

D.    Is the cargo aboard the Mercedes severable from the shipwreck of the
      Mercedes in determining immunity?




      14
           We do not address whether this is an accurate representation of The Navemar’s holding.

                                                 42
      Odyssey, Peru, and all twenty-five individual claimants assert that even if the

Mercedes is immune from arrest, the cargo aboard the Mercedes, and therefore the

treasure that has been salvaged from the shipwreck, is not immune. The individual

claimants argue they have a right to the cargo because they are descendants of

those who had an interest in cargo on the Mercedes, and Peru claims it has a

patrimonial interest in cargo that originated in its territory. Together, they argue

the treasure is not immune because the cargo aboard the Mercedes is private

property that is severable from the shipwreck. Indeed, Peru’s and the individual

claimants’ entire arguments regarding their rights to the treasure are premised on

the notion that the cargo, not the shipwreck, is the relevant res.

      No party has pointed us to any case or statute that directly answers the

question of whether cargo aboard a sunken military vessel is entitled to the same

sovereign immunity as the sunken vessel. None of the cases cited by Odyssey in

support of its argument that cargo is separate from a vessel concern cargo aboard a

sunken military vessel.

      As we discuss below, we are persuaded that in the context of a sunken

Spanish military vessel, the cargo and the shipwreck are interlinked for immunity

purposes. Two reasons support this conclusion: first, other statutes governing


                                          43
shipwrecks, including the Sunken Military Craft Act (SMCA), Pub. L. No. 108-

375, §§ 1401-08, 118 Stat. 1811, 2094-98 (2004), which would govern the salvage

claims against the Mercedes, treat cargo as part of the shipwreck; and second, the

principles of comity discussed in the Supreme Court’s decision in Republic of the

Philippines v. Pimentel, 553 U.S. 851, 128 S. Ct. 2180 (2008), lead us to consider

the potential for injury to the interest of the sovereign.

      1. Cargo treated as part of the shipwreck

      In 1902, the United States and Spain signed a treaty mandating “[i]n cases of

shipwreck . . . each party shall afford to the vessels of the other, whether belonging

to the state or to individuals, the same assistance and protection and the same

immunities which would have been granted to its own vessels in similar cases.”

1902 Treaty of Friendship and General Relations Between the United States of

America and Spain, art. X, July 3, 1902, 33 Stat. 2105. Under this treaty, the

United States must afford the Mercedes, as a shipwrecked Spanish warship, the

same protection it would give a shipwrecked United States military vessel.

      The United States considers the cargo of a shipwrecked U.S. military vessel

part of the shipwreck and gives it the same immunities as the shipwreck. Under the

SMCA, the rights, title and interest of the United States in any sunken military craft


                                           44
are protected absent an “express divestiture of title.” § 1401, 118 Stat. at 2094.

The definition of a “sunken military craft” includes a sunken warship or other

military vessel, as well as “all or any portion of . . . the associated contents of a

craft.” § 1408(3)(C), 118 Stat. at 2098. “Associated contents” are defined as “the

equipment, cargo, and contents of a sunken military craft that are within its debris

field . . . [and] the remains and personal effects of the crew and passengers of a

sunken military craft that are within its debris field.” § 1408(1), 118 Stat. at 2097

(emphasis added). Thus, under the 1902 treaty, the Mercedes and its cargo are

entitled to the same immunities provided by the SMCA.

      Treating the cargo as part of the shipwrecked Mercedes is also consistent

with the Abandoned Shipwreck Act (ASA), Pub. L. 100-298, § 2102(d), 102 Stat.

432 (1988). Under the ASA, the Federal Government asserts and transfers title of

any “abandoned shipwreck” to the state in whose submerged lands the wreck is

embedded. Like the SMCA, the ASA defines “shipwreck” as “a vessel or wreck,

its cargo and other contents.” Id. (emphasis added); see also U.S. Dep’t of Interior,

National Park Service Abandoned Shipwreck Act Guidelines, 55 Fed. Reg. 50116-

01, 50121 (Dec. 4, 1990) (“Any cargo aboard a vessel entitled to sovereign

immunity also generally remains the property of the flag nation unless the cargo



                                           45
had earlier been unlawfully captured by that nation.”). Therefore, under the ASA,

the cargo that was aboard the Mercedes would not be considered separate from the

shipwreck.15

       While the SMCA and the ASA do not state cargo is part of the vessel for

immunity purposes, they show the protections awarded to a sunken sovereign

vessel also extend to the cargo aboard that vessel. As evidenced by the SMCA,

those protections are heightened when the sunken vessel is a military vessel. We

grant the cargo on a sunken Spanish military vessel the same sovereign immunity

protection we grant the vessel.

       2.      The promotion of Spain’s comity interest

       Granting the cargo on a sunken Spanish military vessel the same sovereign

immunity protection as the vessel is also consistent with the heightened protection


       15
          In addition, a site where the remains of a vessel are strewn on the ocean floor is still a
shipwreck even if an intact vessel no longer remains. Our conclusion is based on the plain
meaning of “shipwreck,” which is defined as “a ship’s wreckage.” See Black’s Law Dictionary
1504 (9th ed. 2009) (citing 4 James Kent, Commentaries on American Law at 323 n. (b) (George
Comstock ed., 11th ed. 1866) (stating a shipwreck includes a vessel which “is dashed to
pieces”)). Under its plain definition, a shipwreck covers not only a sunken intact vessel, but also
a vessel that was “dashed to pieces” or exploded at the surface and then sank to the ocean floor.
Our plain-meaning interpretation of “shipwreck” is supported by statutory definitions.
        Furthermore, Odyssey filed both its original complaint against and a motion seeking the
arrest of “The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo.”
The district court, at Odyssey’s request, issued a warrant for the arrest of “The Unidentified
Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo.”


                                                 46
we grant sovereigns when there is a potential of injury to the sovereign’s interest.

In Pimentel, the Republic of the Philippines and a sovereign Filipino Commission

were dismissed as defendants in an interpleader action pursuant to the FSIA. 553

U.S. at 859, 128 S. Ct. at 2186. The action concerned various parties’ claims

against assets in a Merrill Lynch brokerage account, which included funds

allegedly illicitly obtained by an ex-President of the Philippines. Id. at 857, 128 S.

Ct. at 2185. After the Philippines and the Commission were dismissed, the district

court awarded the assets to another party, reasoning the Philippines’ and the

Commission’s claims against the assets had so little likelihood of success on the

merits that the action could proceed without them. Id. at 860, 128 S. Ct. at 2187.

The Supreme Court reversed, concluding that when a sovereign that is a required

party in an interpleader action asserts sovereign immunity and raises non-frivolous

claims, “dismissal of the action must be ordered where there is a potential for injury

to the interest of the absent sovereign.” Id. at 867, 128 S. Ct. at 2191. The Court

explained that in failing to dismiss the action, the district court failed to give full

effect to sovereign immunity and the promotion of the comity interest that

underlies that doctrine. Id. at 865-66, 128 S. Ct. at 2190. It stated the “Republic

and the Commission have a unique interest in resolving the ownership of or claims

to the [] assets,” and a “specific affront [] could result to the Republic and the

                                            47
Commission if the property they claim is seized by the decree of a foreign court.”

Id. at 866, 128 S. Ct. at 2190.

       While Pimentel is factually distinguishable, we find its reasoning instructive.

The same “promotion of the comity interest” that led the Supreme Court to dismiss

the action in Pimentel compels this Court to treat the cargo and the Mercedes as

one for sovereign immunity purposes. Id. There is an undeniable potential for

injury to Spain’s interest if we separated the Mercedes from its cargo and upheld an

arrest of the cargo found and salvaged from a warship that is entitled to immunity.

The silver coins and all other artifacts Odyssey has salvaged and flown to Tampa

came from the Mercedes. While various parties may have cognizable claims

against parts of the recovered res, even by Odyssey’s own estimate approximately

25% of the cargo, measured by value, was Spanish government property.

Moreover, Spain has an even greater interest in the sovereign immunity of its

sunken warships. Thus, the FSIA immunity from in rem suits in U.S. courts given

to the Mercedes applies to the shipwreck as a whole, including the cargo, even if

such cargo was owned by private individuals or has been salvaged from the

wreck.16


       16
         We do not hold the recovered res is ultimately Spanish property. Rather, we merely
hold the sovereign immunity owed the shipwreck of the Mercedes also applies to any cargo the

                                              48
        Because the cargo aboard the Mercedes is treated as part of the shipwreck of

the Mercedes for sovereign immunity purposes, the Mercedes’ immunity precludes

Peru’s attempt to institute an action in United States courts against any part of the

Mercedes or any cargo it was carrying when it sank. This applies whether or not

Peru has a patrimonial interest in the cargo. This also applies to the claims against

the res by the twenty-five individual claimants.17

E.     Did the district court err when it ordered the res released to the custody of
       Spain?


       The district court vacated the arrest and ordered Odyssey, as the substitute

custodian, to return the recovered res to Spain. Odyssey argues this order serves as

a substantive ruling on the merits that is beyond the district court’s power because

the court lacks subject matter jurisdiction. Odyssey contends the court is only

empowered to return the parties to their positions prior to the arrest of the res and,

therefore, the recovered res should be returned to Odyssey because Odyssey was in

possession of the res immediately prior to the arrest. It argues the district court’s




Mercedes was carrying when it sank.
       17
        This holding is limited to the facts in this case, where the cargo was found aboard a
sunken active duty Spanish military vessel and was legally placed aboard the vessel.

                                                49
order “transferred” the property from Odyssey to Spain, which the district court had

no authority to do. We disagree.

      When this action was initiated, Odyssey filed a motion for an order directing

the clerk to issue a warrant of arrest in rem against the shipwrecked vessel, its

apparel, tackle, appurtenances, and cargo. Odyssey stated “[a]ny further artifacts

recovered from the Defendant Shipwrecked Vessel will be recovered under the

jurisdiction of this Court, and will be within the actual and/or constructive

possession of this Court or its duly-appointed substitute custodian during the

pendency of this action.” Odyssey’s Verified Complaint in Admiralty In Rem at 4-

5, Dkt. 1. The court issued a Warrant of Arrest In Rem against the shipwrecked

vessel and its apparel, tackle, appurtenances, and cargo. The warrant commanded

the U.S. Marshal to take possession of the res and any future artifacts recovered

from the shipwrecked vessel. The district court appointed Odyssey as substitute

custodian of the shipwrecked vessel and any recovered artifacts “until further order

of this Court.” Ord. Appointing Substitute Custodian at 2, Dkt. 8.

      By virtue of the issuance of the arrest warrant, the court is currently in

possession of approximately 594,000 recovered coins and other artifacts. It

necessarily follows that the court, after determining the res was immune from


                                          50
arrest, must have the ability to release the res from its custody. A contrary

conclusion would lead inexorably to court custody in perpetuity. We have

determined the arrest of the recovered res must be vacated, and therefore the

district court must now release the property.

      The Fed. R. Civ. P. Supplemental Admiralty Rules provide little instruction

on how a court should release previously arrested property when the court does not

have subject matter jurisdiction over the property. Supplemental Rule E(5)(d)

states “the property arrested shall be released only by order of the court, on such

terms and conditions . . . as the court may require.” The rule does not state to

whom the res should be released, only that it should be released according to the

“terms and conditions” best seen fit by the court.

      We note, the release from custody sought by Odyssey would not, as Odyssey

contends, return matters to the status quo at the commencement of this suit. The

U.S. Marshal seized the res approximately one month after Odyssey discovered the

site in March of 2007. Odyssey continued recovery operations after the order of

arrest. While Odyssey may have had prior custody of some items from the site, the

remainder of the recovered res was received in Odyssey’s capacity as custodian for

and under the authority and protection of the court.


                                          51
      Moreover, releasing the res to the custody of Spain is not, as Odyssey

attempts to characterize it, a “transfer.” Odyssey holds the res as a substitute

custodian of the district court; the res remains in custodia legis (in the court’s

possession). By ordering Odyssey, as substitute custodian, to release the res into

Spain’s custody, the court is relinquishing its control of the res and releasing it to

the party that has a sovereign interest in it. Further, Spain’s sovereign interest in

the res existed before Odyssey initiated this action and deposited the parts of the

res it had salvaged from the shipwreck.

      In fact, releasing the res to Odyssey rather than Spain would be inconsistent

with Spain’s rights under the 1902 Treaty of Friendship and General Relations

between the United States of America and Spain. As discussed previously, this

treaty requires the United States to extend to Spanish shipwrecked vessels the

same protection and immunities afforded to its own shipwrecked vessels in similar

circumstances. 1902 Treaty of Friendship and General Relations Between the

United States of America and Spain, art. X, July 3, 1902, 33 Stat. 2105. The

United States protects its sunken warships from unauthorized private party access

and possession. See SMCA, §§ 1402(b), 1408, 118 Stat. 2094. Thus, the 1902

Treaty requires the Mercedes be afforded the same protection and immunities from

unauthorized access and salvage.

                                          52
      Finally, the Supreme Court’s reasoning in Pimentel, which led us to

conclude the cargo recovered from the Mercedes must receive the same sovereign

immunity protection as the Mercedes itself, also supports our decision to affirm

the district court’s order to release the res into Spain’s custody. The Supreme

Court noted the “specific affront that could result” to a foreign state “if property

they claim is seized by the decree of a foreign court.” Pimentel, 553 U.S. at 866,

128 S. Ct. at 2190. The same affront would result here if the res, which the

district court improperly arrested, was then released to Odyssey. This would force

Spain to file suit against Odyssey to retrieve property that is protected by Spain’s

sovereign immunity.

      For the foregoing reasons, the district court did not err when it ordered

Odyssey to release the recovered res to the custody of Spain.

                                IV. CONCLUSION

      We AFFIRM the district court’s grant of Spain’s motion to dismiss.

AFFIRMED.




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