Wikileaks Cables on Odyessey Marine Exploration

[GOHO]

C O N F I D E N T I A L MADRID 001285

SIPDIS

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E.O. 12958: DECL: 6/26/2017
TAGS: ECON SP PREL EWWT SCUL PHSA PBTS
SUBJECT: WHEN WILL ODYSSEY SHIPS SAIL OUT?

REF: MADRID 1191 AND PREVIOUS

Classified By: Deputy Cheif of Mission Hugo Llorens for reasons 1.4 (b)
and (d)

¶1. (C) Odyssey Marine Exploration representatives Marie
Rogers and Ali Nasser requested a meeting with EconOff June
26 to informally update the Embassy on the American company's
plans to sail out from Gibraltar. Despite assurances that the
Spanish would indeed attempt to execute the warrant against
Odyssey, possibly leading to the detention of its vessel/s in
disputed international waters, Nasser said the company had
decided nonetheless to leave port as soon as possible.

¶2. (C) The Odyssey representatives outlined a 3-step timeline
for one or both vessels' departure from port which could
occur as early as next week. The first step would be the
drafting of an "Affidavit of Events" leading up to Odyssey's
"Black Swan" find (reftel). US Odyssey lawyers are currently
drafting that affidavit which will include a declaration that
in Fall 2006, Odyssey head Greg Stemm met with the Ministry
of Culture on what eventually turned out to be the "Black
Swan" find. Once this affidavit is complete, the second step
is for Odyssey representatives to once more approach the
Ministry of Culture, affidavit in hand, to attempt to reach a
compromise. From the date of this meeting, Odyssey employees
will begin the third step of divesting its vessels of the
expensive exploration equipment currently onboard. Once this
divestment is complete, the Odyssey vessels will set sail
with an American master, with representatives Ali Nasser and
Marie Rogers, and with a filming crew on board.

3.(C) Nasser said that in the interests of transparency,
Odyssey will notify the Spanish Guardia Civil the night
before of their intentions to set sail. If the Spanish do
not detain the ships, then they will sail on to Great
Britain. Nasser also indicated that should the Ministry of
Culture be receptive to compromise, Odyssey representatives
would offer to sail their vessels into Spanish waters to
allow a search while avoiding an international dispute over
the waters around Gibraltar. Nasser said that Odyssey was
also prepared to invite GoS along on its next salvaging trip
to the Black Swan site. However, Nasser caveated, these
offers would only be given if the Spanish guarantee that they
will not detain Odyssey ships. Econoff expressed
appreciation for Odyssey efforts towards compromise, and
encouraged continued flexibility in reaching a solution that
would avert contestation in international waters where all
parties, including Odyssey, would lose.

¶4. (C) Comment: Odyssey's current strategy is to provide a
"face saving" way out for Spain that would also allow the
Odyssey to regain the use of their ships. The Ministry of
Culture and its corresponding Andalucian stakeholders will be
the key to how this issue proceeds. Though the offer to allow
a Spanish representative to be on board when the Odyssey
returns to the Black Swan site may be tempting to MoC, it is
difficult to predict how emotions or local political
gamesmanship will affect the outcome. Ultimately, the larger
issue for both parties is ownership of the coins, a theme
where neither Odyssey nor the different Spanish factions have
expressed a willingness to budge. Odyssey's thoughts on how
to approach this dispute are ever changing, and hence there
is always a possibility that their course of action may
change. Nonetheless, Odyssey representatives advised Post
that they would continue to keep us in the loop of
developments.




Friday, 07 September 2007, 10:49
UNCLAS MADRID 001722
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SENSITIVE
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STATE FOR EUR/WE, L, AND OES
EO 12958 N/A
TAGS PREL, EWWT, PBTS, PHSA, SCUL, SP, CA
SUBJECT: ODYSSEY UPDATE: DHS DELIVERS CUSTOMS INFORMATION
REF: MADRID 1670 AND PREVIOUS
¶1. (SBU) On September 6, DHS-ICE Attache delivered the Odyssey Customs import documents to Director of Aduanas Nicolas Bonilla, as requested by GOS via the Customs Mutual Assistance Agreement (CMAA) on July 24. The DHS-ICE Attache advised Bonilla that the information was confidential and to be used only for law enforcement purposes. Bonilla expressed appreciation for the information, and assured the DHS-ICE Attache that it would be used only for official purposes. He added that Aduanas would make a formal request through DHS channels before sharing the documents with any other GOS agency. Post advised MFA representatives of this exchange the afternoon of September 6.
¶2. (SBU) Separately, the MFA sent Post a diplomatic note September 4 in response to the Ambassador’s August 29 meeting with Foreign Minister Miguel Angel Moratinos (ref). MFA officials advised us verbally that they will seek the Odyssey information through their Aduanas, acknowledging that Aduanas would first have to seek the necessary permission from DHS. Jorge Domecq, MFA’s Deputy Director for Gibraltar Issues, noted that MFA was interested in obtaining the Odyssey customs information to provide to lawyers representing the GOS in the Tampa Admiralty Court.
¶3. (SBU) Meanwhile, the Odyssey Explorer remains docked in Gibraltar and has not yet unloaded its cargo. According to British Embassy representatives, Odyssey representatives have stated that the vessel will begin unloading its cargo the week of September 10.
¶4. (SBU) Below is an informal translation of Foreign Ministry diplomatic note 277/31 dated August 31, which was provided to the Embassy on September 4.
Begin Text:
(complimentary opening)...and has the honor to refer to Embassy Note Verbal No. 445 of 20 August 2007 on obtaining the documents for entry into the United States of the objects of archeological value brought up by the “Odyssey Marine Exploration” from a wreck code-named “Black Swan.”
In this regard, the Ministry wishes to reiterate to the Embassy the request made for the above mentioned documents in Note Verbal number 79 of 22 May 2007.
Furthermore, the Ministry seeks to inform the Embassy as follows:
- On 24 July 2007, the Director of the Department of Customs and Excise Taxes of the Tax Agency of Spain sent a letter to the Director of U.S. Customs and Border Protection requesting these documents pursuant to Article X of the Mutual Assistance Agreement on Customs (“special assistance cases”). A copy of the letter is attached hereto.
-The documents are requested for the Tax Agency of Spain, which is the agency responsible for the enforcement of Spanish and Community customs legislation.
- The documents are requested to investigate the legality and validity of the transfer to the United States of the two shipments of coins and archeological material from Gibraltar referred to in the attached document, and to enforce compliance with all applicable Spanish legislation in this area, take all appropriate judicial action and assert the rights of the Government of Spain in all appropriate legal venues.
- The Spanish Government will approach this matter with the discretion and confidentiality that it applies to all its relations with the U.S. Government...
(Complimentary closing)
End Text. AGUIRRE
UNCLAS SECTION 01 OF 02 MADRID 001952

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E.O. 12958: N/A
TAGS: PBTS PHSA SCUL SP UK
SUBJECT: SPANISH DEMARCHES ON ODYSSEY ONCE AGAIN

REF: STATE 138377 AND PREVIOUS

MADRID 00001952 001.2 OF 002


¶1. (SBU) On October 9, Foreign Ministry Deputy Director for
North American Affairs Fernando Prieto presented a nonpaper
to desk officer Elaine Samson and EconOff reinforcing the
GOS' desire to obtain broader access to the Odyssey import
documents into the U.S. and requesting that the U.S. conduct
an investigation of potential violations of U.S. law on the
part of Odyssey Marine Exploration company.

¶2. (SBU) The text of the message, which was presented in
English, is as follows:

Further to the meetings of 27 September 2007 and 3rd October
2007 with Mr. Bellinger, Legal Advisor, U.S. Department of
State, here is a reply to the points raised by him on the two
Spanish requests included in the Non Paper dated 24th
September 2007.

Request A: That the documents presented by Odyssey Marine
Exploration (OME) for entry into the U.S. of certain
archaeological goods be released for confidential use.

¶1. Release of the documents is requested for
confidential use in investigation of potential violations of

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application U.S. Customs and Spanish laws concerning the
extraction and shipment of these goods, and in judicial
proceedings that may arise from enforcement of the relevant
United States and Spanish Laws.

¶2. Additionally, there is reason to believe that the
materials imported by OME are property of the Kingdom of
Spain taken from the sea and imported to the U.S. in
violation of Spanish law. The importation of these materials
may accordingly be subject to U.S. Customs laws as materials
imported contrary to relevant U.S. and Spanish law concerning
the protection of national property, military property and
historical/cultural heritage. In particular, available
information indicates that the documents contain specific
information with respect to the location from which the
materials were taken and identification of the nationality
and the dates of coins and other artifacts. This information
is believed to provide confirmation that the materials in
question were taken from a warship of the Royal Navy of Spain
that sank in battle during the early 19th Century and are
property of the Royal Treasury of the Kingdom of Spain that
was being transported by this vessel in service of the
Kingdom Spain. Release of the requested documents is
necessary to investigate the application of such laws and to
assist U.S. Customs and such other competent U.S. agencies as
may be authorized to have access to the documents for
purposes of potential enforcement proceedings.

¶3. The agencies of the Government of Spain that have
competence in the investigation of this matter and/or in
judicial enforcement proceedings, and to which the documents
would therefore be made available: Spanish Customs, Ministry
of Foreign Affairs and Cooperation, Ministry of Culture,
Ministry of Justice, Spanish Navy. It is understood that the
documents shall be held in confidence by authorized
representatives of the competent Spanish agencies and used
only for investigation and/or enforcement proceedings in
Spain and/or the U.S.

Request B: That the possible violation by OME of U.S.
customs or other rules be fully investigated and prosecuted
by U.S. authorities.

¶1. U.S. Customs laws OME might have violated: 18 U.S.C.
Section 542 which prohibits the importation of materials by
means of false statements; 18 U.S.C Section 545, which
prohibits the importation of goods to the U.S. in violation
of any law (which may include Spanish law); and 19 U.S.C.
Section 1595a, which provides for seizure and forfeiture of
goods imported in violation of relevant laws.

¶2. The available information indicates that the
importation of these materials may have occurred by means of
false and/or misleading statements concerning the country of
origin, ownership, value, legal status, and/or other
characteristics of the imported materials. Additionally, as
noted above, to the extent that specific information as to
the location and identifying characteristics of the materials
was provided in the documents, it is believed to constitute
evidence of the taking and shipment to the U.S. of national
property of Spain in violation of Spanish law concerning such
property and corresponding U.S. laws concerning the
importation of such property.

¶3. Should additional information concerning this matter
be needed at this stage, it would be provided on request on a

MADRID 00001952 002.2 OF 002


confidential basis. An investigative dossier is currently

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being assembled concerning the available evidence, for which
the requested documents are needed, and will be made
available to the U.S. Customs, the Department of State and
such other U.S. agencies as may be deemed appropriate by the
U.S.


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[itmaiden]

The cables involving the Odyssey demonstrate the State Department circumventing the judicial process.
Whether there was a possible violation of custom import laws is not a matter for Spain to decide but would be a matter of investigation by the U.S. Government.

If the U.S. was merely aiding Spain in acquiring "Discovery" documents, that is a clear violation of the judicial process whereas Spain may "petition" the court for discovery of the documents.

To "make a deal" outside of the judicial process, without the parties being aware or in agreement is clearly unethical and apparently was a matter to serve some private agendas, and any employee(s) who engaged in such should be terminated as they obviously violated the "trust" they are given in their government positions.

In another cable, hypocrisy is seen in an international child abduction/custody battle whereas the U.S. and Spain are once again the players. In the custody case where the mother took the child from New Jersey to Spain, the respected countries stated it is not for the governments to decide but should be left up to the judicial system to decide. The parents and the child are citizens of the U.S.


itmaiden